Since June 2016, the California State Water Resources Control Board (SWRCB) has been working to develop a state wetlands definition, as well as revised procedures for the discharge of dredged or fill materials to “waters of the State,” which the SWRCB is expected to consider adopting in Winter 2017-2018. The culmination of that effort resulted in the SWRCB issuing its most recent version of the procedures in July 2017. Two staff workshops were held in August 2017 and the public comment period ended on September 18, 2017. At its core, the procedures are meant to “fill the gap” at the state level where the federal Clean Water Act (CWA) Section 404 permitting program may not currently apply, or to expand state involvement should the Section 404 permitting program be modified to narrow its scope. As explained in greater detail below, the SWRCB’s actions are expected to have widespread implications on the regulated community.
Background
The SWRCB’s actions relate to amendments to both the Water Quality Control Plan for Ocean Waters of California (Ocean Plan) and the forthcoming Water Quality Control Plan for Inland Surface Waters, Enclosed Bays, and Estuaries of California (ISWEBE Plan). The SWRCB intends the ISWEBE Plan to include a statewide “wetlands” definition and related procedures for the discharge of dredged or fill materials to waters of the State.
The SWRCB developed the proposed amendments to address several issues. First, the SWRCB is attempting to bolster protections for waters of the State that do not fall under CWA jurisdiction due to past U.S. Supreme Court decisions. See, e.g., Rapanos v. U.S., 547 U.S. 715 (2006). Second, the state’s Regional Water Quality Control Boards (RWQCBs) have inconsistently regulated the discharge of dredged of fill materials into waters of the State and wetlands. Thus, the SWRCB is attempting to create a statewide and uniform regulatory system for the discharge of dredged and fill materials. Third, the SWRCB is attempting to improve the current regulatory framework to prevent further losses in the quantity and quality of wetlands in the state.
According to the SWRCB, the proposed amendments consist of the following main components: 1) a wetland definition; 2) a framework for determining if a feature that meets the wetland definition is a water of the State; 3) wetland delineation procedures; and 4) procedures for application submittal, and the review and approval of Water Quality Certifications, Waste Discharge Requirements, and waivers of Waste Discharge Requirements for dredged or fill activities. Additionally, the SWRCB’s amendments set forth exclusions from the proposed procedures, as well as supplemental dredge and fill guidelines.
Key Changes and Highlights
The implications and details of the SWRCB’s proposed wetlands definition and revised procedures for the discharge of dredged or fill materials to waters of the State are numerous and far-reaching. For purposes of this article, a few key changes are highlighted. For additional information, please contact the authors or visit the SWRCB’s website at: https://www.waterboards.ca.gov/water_issues/programs/cwa401/wrapp.shtml (last accessed Oct. 19, 2017). Key changes with respect to the SWRCB’s proposed amendments include the following:
•New requirements in permit procedures for applicants and SWRCB staff. More specifically, the SWRCB’s procedures will increase the number of “alternative analyses” performed by applicants for a variety of projects. An alternative analysis is the process by which an applicant and the permitting authority determine if the proposed project is the Least Environmentally Damaging Practicable Alternative (LEDPA). Under the SWRCB’s procedures, smaller projects are likely to trigger a full alternative analysis. Further, a full alternative analysis could be required for projects that qualify for a nationwide general permit under the United States Army Corps of Engineers’ (Corps) streamlined permitting process. These changes in the SWRCB’s alternative analyses requirements will bolster environmental review, but they will also likely increase costs for applicants and SWRCB staff.
•Measures to address the void left between state-level procedures and federal-level procedures where the CWA Section 404 permitting program may not apply. The SWRCB’s proposed wetlands definition differs from the definition used by the Corps. The SWRCB’s definition is intended to address wetlands that do not fall under the Corps’ jurisdiction and would expand state involvement should the CWA Section 404 permitting program be narrowed in scope. Although the SWRCB’s proposed changes provide a more comprehensive scheme to regulate wetlands between the state and federal level, the proposed amendments may create additional costs and delays as a result of the overlap and conflicts between different permit programs.
Conclusion and Implications
It remains to be seen what final changes the State Water Resources Control Board adopts with respect to its proposed wetlands definition and revised procedures for the discharge of dredged or fill materials to “waters of the State.” There is pressure from some stakeholders to withdraw the proposal or to modify the currently proposed procedures as requested in comments. However, there is equal counter pressure by those who feel a sense of urgency to more quickly “fill the gap” as noted above. The board plans to issue its response to public comments in Fall 2017, which will then be followed by the SWRCB’s plan to consider adopting the new rules in Winter 2017-2018.
(Nicole E. Granquist; Patrick F. Veasy, Meredith Nikkel)
