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California: After Years of Handwringing and Lengthy Stakeholder Negotiations, Water Board Adopts State Wetland Definition

On Tuesday, April 2, 2019, the California State Water Resources Control Board (“State Water Board”) adopted its proposed State Wetland Definition and Procedures for Discharges of Dredge or Fill Material to Waters of the State (“Procedures”).

The Procedures were adopted after a lengthy stakeholder process and represent an attempt by the State to compromise among the non-governmental organization (“NGO”) community and the regulated community, which span a broad array of stakeholders, including developers, agriculture, municipalities, water and flood control districts, and industry. The Procedures  consist of: (1) a state-wide definition of wetlands; (2) a framework for determining whether a feature meeting the wetland definition is a water of the state (“Jurisdictional Framework”), (3) wetland delineation procedures, and (4) procedures for application submittal and the review and approval of water quality certifications, waste discharge requirements (“WDRs”), and waivers of WDRs for dredge or fill activities (collectively referred to as “Orders”). Among other ramifications, the new Procedures largely duplicate (and in some respects are inconsistent with) federal procedures, but add a significant new layer to the already byzantine regulatory process for permitting projects that involve fill of federal and state waters and wetlands.

The State Water Board’s adoption of the Procedures concludes a years-long process that began in 2008 with the adoption of State Water Board Resolution 2008-0026. On January 3, 2019, the State Water Board released a Final Draft Notice of the Procedures, which spurred a concentrated effort by all stakeholders to obtain last minute changes, resulting in three workshops and the release of two additional versions of the Procedures (released on February 22, and March 22, 2019). The timing of the Draft Procedures’ release is largely viewed as a reaction to the release of the revised federal Waters of the United States (“WOTUS”) definition in December 2018 (published in the Federal Register on February 14, 2019), which the State Water Board believes could curtail regulatory protections for waters and wetlands handled under the federal Clean Water Act section 404 program. The Procedures will be incorporated as amendments to state water quality control plans and are intended to supersede any conflicting provisions in the Regional Water Quality Control Boards’ (“Regional Boards”) water quality control plans and will apply to the State and Regional Water Boards (collectively, “Water Boards”).

Wetlands Definition

At the time of the Procedures’ adoption, California did not have a state-wide definition of what constitutes “wetlands.” However, some Regional Boards have adopted a wetland definition, resulting in a patchwork of definitions applied on a region-by-region basis.

The Procedures provide that an area qualifies as a wetland (and therefore, a “waters of the State”) if it meets three criteria 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. Normal circumstances are defined as:

“the soil and hydrologic conditions that are normally present, without regard to whether the vegetation has been removed. The determination of whether normal circumstances exist in a disturbed area involves an evaluation of the extent and relative permanence of the physical alteration of wetland hydrology and hydrophytic vegetation, and consideration of the purpose and cause of the physical alternations to hydrology and vegetation.”

While the Procedures’ wetland definition is somewhat consistent with U.S. Army Corps of Engineers (“Corps”) wetland delineation criteria, the State’s definition differs in one important respect. To account for water features in arid portions of California, the definition provides that an area may be a wetland even if it does not support vegetation. However, where vegetation is present, the Procedures require that the vegetation be wetland vegetation.

Regardless of whether a particular water feature meets the wetland definition, that feature may be exempt from delineation as a “waters of the state” under Water Board jurisdiction. Exemptions are determined by applying the Procedures’ Jurisdictional Framework.

Jurisdictional Framework

Where a water feature meets the Procedures’ definition of a wetland, the burden is on the applicant to demonstrate that the wetland is not a waters of the state. To assist applicants in making this determination, the Procedures set forth a list of aquatic features considered to be waters of the state, including: (1) all natural wetlands; (2) wetlands created by modification of a surface water of the state; and (3) wetlands that meet current or historic definitions of WOTUS. This last category of waters is particularly controversial given that it encompasses the 2015 WOTUS definition, which has been tied up in the federal courts since its adoption, and current or historic definitions could potentially conflict.

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