On January 28th, the California State Water Resources Control Board (the "State Board") took an important step towards implementing its long-awaited Wetland and Riparian Area Protection Policy. The State Board reissued its Preliminary Draft Wetland Area Protection Policy (the "Draft Policy"). The Draft Policy would establish a regulatory definition of wetlands, methods for delineating such wetlands, and procedures for authorizing dredge and fill discharges to waters of the State. Through this Policy, the State Board would regulate development in and near wetlands to the full extent of its statutory authority for the first time. This new administrative authority may require permits to be obtained for many more activities, and thus must be monitored as the Draft Policy continues to evolve.
Background
In 2008, the State Board issued Resolution No. 2008-0026, which called for adopting a Wetland and Riparian Area Protection Policy. Although the State Board traditionally relied primarily on federal Clean Water Act section 404 to protect wetlands, the United States Supreme Court created significant uncertainty surrounding the jurisdictional reach of this provision with the SWANCC and Rapanos decisions in 2001 and 2006.1
However, under California's Porter-Cologne Water Quality Control Act2, the State Board's regulatory jurisdiction extends beyond the scope of the federal Clean Water Act to "any surface water or groundwater . . . within [California]."3 Thus, Porter-Cologne jurisdiction extends beyond federal "waters of the United States" to include so-called "isolated waters." To further complicate matters, in the absence of State Board policy, the Regional Water Quality Control Boards (the "Regional Boards") have not consistently applied their jurisdiction to wetlands.
The State Board's program is designed to fill the gap in federal Clean Water Act jurisdiction and to provide a definition of wetlands applicable statewide. The Draft Policy would be the first step towards implementing the Wetland and Riparian Area Protection Policy and fulfilling California's "No Net Loss Policy" for wetlands.4 The Draft Policy builds on the version first issued March 9, 2012, and is designed to better align with federal permitting requirements.
Regulatory Definition of Wetlands
The Draft Policy would define a "wetland area" based on three characteristics: hydrology, substrate, and vegetation.
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 either lacks vegetation or the vegetation is dominated by hydrophytes.
In comparison to the definition of wetlands employed by the United States Army Corps of Engineers (the "Corps"), this definition would apply more broadly as it would extend permitting authority to discharges upon non-vegetated wetlands such as mudflats, playas, and seasonal wetlands. This difference may affect projects in numerous locations, but particularly in California's desert areas – such as utility-scale solar installations – that often are sited on or adjacent to such geographic features.
Delineating Wetlands
To delineate wetlands that fit within this definition, the Draft Policy would require using methods developed by the Corps. Where the Corps has already delineated wetlands to be within the boundaries of the waters of the United States, the Regional Boards would rely on such delineations. To delineate additional wetlands as "waters of the state," the Regional Boards would deploy the methods set forth in technical documents issued by the Corps.5 However, given that the Corps and Regional Boards would be employing different definitions of wetlands, this may require those mapping wetlands to map them twice – once according to each definition.
The Draft Policy indicates that the Regional Boards would review delineations submitted as part of a permitting application, and would field verify such delineations "as appropriate." Accordingly, developers and planners should prepare to have their delineations subjected to field verification – particularly in situations that may be contentious.
Procedures for Authorizing Dredge and Fill Discharges to Waters of the State
In addition to these jurisdictional changes, the Draft Policy would establish a new system of authorizing discharges. Although similar to the current process employed by the Corps in conjunction with the Regional Boards, certain aspects may result in increased regulatory burdens for those needing to obtain authorization for discharges of dredged and fill material.
Watershed-Based Approach
The Draft Policy proposes a watershed-based approach to determine whether it would issue permits for discharges of dredged or fill materials into waters of the state. This approach would take into account impacts and considerations throughout the watershed. Furthermore, to the extent that projects occur in areas covered by watershed or regional plans (e.g. Habitat Conservation Plans), the Draft Policy would authorize Regional Boards to look to these plans to fulfill required environmental compliance measures. This determination would be made by the Regional Boards, and may provide for cost savings where such plans have been issued. However, this watershed-wide focus may increase permitting costs as it appears to require a technical evaluation of all other impacts to wetlands within the watershed.
Excluded Activities
The Draft Policy would exclude activities from coverage that are also excluded under federal Clean Water Act section 404(f). In addition to these exclusions, the Draft Policy would exclude prior converted cropland, constructed treatment wetlands, and storm water treatment basins. However, the Draft Policy places two significant limitations on the exclusions. First, if there is any discharge incidental to an excluded activity that creates a new use or impacts water "flow" or "reach," a permit would be required. The Draft Policy fails to clarify the meaning of these terms. Second, these exclusions would not preclude the imposition of waste discharge requirements ("WDRs"). As a result, an excluded activity could avoid the dredge and fill discharge permit requirement but nevertheless have to go through the WDR process.
The Permit Application
The Draft Policy also sets forth the requirements for permit application submittals. These requirements would include, in most circumstances, an alternatives analysis that demonstrates that the proposed project is the least environmentally damaging practicable alternative ("LEDPA"), consistent with federal authorities.
In addition, the Draft Policy establishes the technical criteria that would be required for permit applications, including a Preliminary Delineation Report, an analysis of the proposed discharge's characteristics, a monitoring program, and a compensatory mitigation program (if required), among others.
Factual Determinations
To approve a permit application, Regional Boards would have to determine that a project complies with the 404(b)(1) Guidelines for alternatives analysis. These Guidelines require that a project first avoid impacts through project design, next take all practicable steps to minimize impacts, and then mitigate any impacts that cannot be avoided or minimized. Where watershed and regional plans apply, such plans may be used to inform or even replace this alternatives analysis.
Compensatory Mitigation
Where compensatory mitigation is required, the Draft Policy would require adhering to the 404(b)(1) Guidelines as well as California's No Net Loss Policy and other applicable requirements of California and local law. The Draft Policy would deploy a watershed approach to compensatory mitigation, at a ratio of at least one-to-one, with additional buffer areas around compensatory mitigation sites. This watershed approach may complicate the process of obtaining sufficient mitigation in watersheds that are highly developed or do not have significant wetland areas.
Outlook
When releasing the document, the State Board noted that the Draft Policy is being released for informational purposes only in order to allow completion of internal review. Although there is no formal opportunity for comment at this time, affected parties should be ready to comment once the Draft Policy is officially issued.
While it may appear that the State Board is rolling out a "new" regulatory program, the State Board maintains that this is not the case. Rather, the State Board points out that the Corps and the Regional Boards have long worked together, as the Regional Boards must grant Clean Water Act section 401 water quality certifications when the Corps issues a section 404 dredge and fill permit. Moreover, the State Board argues that the Regional Boards would merely be implementing the same standards used by the Corps. This position ignores the fact that the definition of wetlands has a significantly broader reach, particularly in California's arid regions, than prior Regional Board interpretations. Furthermore, the watershed focus would substantially alter the focus of permit application evaluations. While the State Board characterizes the Draft Policy as necessary for consistency, the resulting consistency may be the imposition of more regulatory jurisdiction over development.
If the Draft Policy is finalized, it would be the first major document issued for the Wetland and Riparian Area Protection Policy. The Draft Policy is subject to environmental review under the California Environmental Quality Act, and an environmental review document will be issued soon by the State Board. These changes will constitute Phase 1 of a 3 phase process for implementing the Wetland and Riparian Area Protection Policy. Phase 2 will extend water quality protection to wetlands from activities other than dredge and fill discharges. Phase 3 will further expand the scope of the State Board's Wetland and Riparian Area Protection Policy to protect surface waters from impacts that may result from riparian area disturbances. Phases 2 and 3 are slated to be implemented in 2013 and 2015, respectively, but may be delayed given the time taken by the State Board to complete Phase 1.
Footnotes
1 See Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers ("SWANCC"), 531 U.S. 159 (2001); Rapanos v. United States, 547 U.S. 715 (2006).
2 Cal. Water Code § 13000 et seq.
3 Cal. Water Code § 13050(e) (emphasis added).
4 See California Wetlands Conservation Policy, Executive Order W-59-93, Gov. Pete Wilson (Aug. 29, 1993).
5 See Wetlands Delineation Manual, Technical Report Y-87-1, U.S. Army Corps of Eng'rs (1987); Regional Supplement to the Corps of Engineers Wetlands Delineation Manual: Arid West Region (Version 2.0), ERDC/EL TR-08-28, U.S. Army Corps of Eng'rs (2008); Regional Supplement to the Corps of Engineers Wetlands Delineation Manual: Western Mountains, Valleys, and Coast Region (Version 2.0), ERDC/EL TR-10-03, U.S. Army Corps of Eng'rs (2010).
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.