Defining a Wetland
The California State Water Resources Control Board has adopted new rules entitled “Procedures for Discharges of Dredged or Fill Material to Waters of the State.” Here’s what you need to know.
What to Expect Under California’s ‘New’ Dredged or Fill Discharge Procedures
By James T. Burroughs
On April 2, 2019, the State Water Resources Control Board (State Water Board) adopted new rules entitled “Procedures for Discharges of Dredged or Fill Material to Waters of the State” (Procedures). In justifying these rules, the State Water Board cited the potential need to strengthen protections for “waters of the state” and develop uniform definitions and procedures across California’s Regional Water Quality Control Boards (Regional Boards) for regulating discharges of dredged or fill materials.
The Procedures establish a definition of “wetland” that largely tracks the U.S. Army Corps of Engineers’ three-parameter definition; the text italicized below is the only difference. Under the Procedures, an area is a wetland if, under “normal circumstances” (a defined term):
• The area has continuous or recurrent saturation of the upper substrate caused by groundwater, or shallow surface water, or both;
• The duration of such saturation is sufficient to cause anaerobic conditions in the upper substrate; and
• The area’s vegetation is dominated by hydrophytes or the area lacks vegetation.
In addition, the Procedures establish a Regional Boards regulatory process for the submission, review, and approval of applications for activities that could result in the discharge of dredged or fill material to “waters of the state.” In total, however, the Procedures appear to do little more than formalize a Regional Boards permitting process that has been in effect to varying degrees since 2001, when the U.S. Supreme Court determined that the Army Corps does not have jurisdiction over “isolated waters.”
Nonetheless, there are some potentially important new twists in the Procedures. For example, with respect to required mitigation plans, it is now possible that the level of detail usually required only for larger fill projects may now also be required by Regional Board staff for the smaller and less impactful projects. Importantly, under the Procedures, the Regional Boards will now be obligated to apply the rigorous “alternatives analysis” procedure to certain projects that have historically been effectively exempt from that analysis when processed under one of several Army Corps nationwide permits (NWPs).
Perhaps the most important ramification of the State Water Board’s action in adopting the Procedures is to effectively freeze in place the existing regulatory process for the fill of waters in California, even if the Trump administration is ultimately successful in its current efforts to scale back the reach and processing requirements of the Army Corps’ Section 404 regulatory program.
The Procedures will take effect nine months after approval by the state’s Office of Administrative Law, which means they are likely to become effective near the end of the first quarter of 2020. The Procedures do not apply to applications that are submitted prior to the date the Procedures become effective.
The procedural requirements of the Procedures’ alternatives analysis and mitigation plan could theoretically dramatically increase the workload of the Regional Boards’ staff, but the extent to which this workload materializes will likely depend upon whether the Trump administration is successful in narrowing the Section 404 program’s scope. If that program is scaled back, the number of projects subject solely to California’s regulatory program will likely increase, generating considerably more work for Regional Board staff. On the other hand, if the Section 404 federal permitting program remains unchanged, the new Procedures may only have an impact on a very small percentage of projects (estimated by State Water Board staff to be roughly one percent).
For the vast majority of projects, it appears that the Regional Boards will be able to comply with the new Procedures with continued reliance on the information generated by the existing Army Corps requirements for processing NWPs and individual permit applications. The Procedures are not applicable at all to projects authorized under a general permit issued by the State Water Board or a Regional Board.
For projects that do not fall within the Army Corps’ permitting jurisdiction or are otherwise not subject to one of the state’s general permits, the Procedures will effectively require many of those projects to be processed as if they were subject to an Army Corps individual permit, i.e., they will have to include preparation of an alternatives analysis leading to a “least environmentally damaging practicable alternative” (LEDPA) determination and preparation of a detailed mitigation plan. This may not be a significant difference from current procedures, given that, in recent years, the Regional Boards have informally engaged in this practice to varying degrees in those relatively few instances where a fill of an “isolated water” is proposed. The Procedures now formalize this practice and make it consistent across all Regional Boards.
Potentially Significant New Requirement
One potentially significant change affected by the Procedures is their application to some projects that have historically qualified for certain Army Corps NWPs. Several often-used NWPs — utility lines (NWP 12), linear transportation projects (NWP 14), residential and commercial developments (NWPs 29 and 39), and recreational facilities (NWP 42) — apply to projects with fills of up to 0.5 acres (including wetland fills) or impacts to drainages that exceed 300 feet (if the Army Corps waives the 300-foot default cap). Under the Procedures, a full alternatives analysis leading to a LEDPA determination and detailed compensatory mitigation plan is now required for any project that would involve fill of more than 0.2 acres or more than 300 linear feet of a drainage.
As to those projects, the Procedures effectively override the Army Corps’ NWP program by requiring them to be processed as if they were an individual permit project, not a NWP project. This has the potential to significantly extend the permit processing time for these particular projects and change the standards by which to determine whether and on what conditions the requested permit will be issued.
Issues for Future Consideration
The Procedures do not put to rest all open questions regarding the State’s wetlands and waters regulatory program. The following open issues may still arise (or be litigated) in the course of pursuing permits for discharges to waters of the state:
• The Procedures do not cite a legal basis for the declaration that discharge of fill to waters of the state qualifies as a discharge of “waste” that is subject to regulation under the State’s Porter-Cologne Water Quality Control Act (Porter-Cologne Act). In fact, no legal authority has clearly established that “fill” is “waste” as that term is used in the Porter-Cologne Act.
• Other California resource agencies such as the California Coastal Commission (CCC) must rely on different definitions of wetlands from those contained in the new Procedures. For projects in the coastal zone, the CCC must apply the wetland definition supplied by the Coastal Act (Pub. Resources Code, § 30121). Likewise, nothing prevents a CEQA lead agency from applying its own definition of a wetland as long as the definition has a basis in substantial evidence. Of course, alignment of the wetland definition across all regulatory agencies is not within the State Water Board’s regulatory purview and can only be effected with statutory change.
• The Procedures do not purport to define “waters of the state” other than wetlands, leaving practitioners with broader unanswered questions about other non-wetland waters. For example, the Procedures do not address the question of when a tributary is no longer a water of the state — an issue that comes up for practitioners more often than might be guessed.
As with any new regulatory program, a true understanding of the effect and reach of the Procedures will only come with application in the field. That will not begin until sometime in 2020. WW
About the Author: James Burroughs is a partner in Allen Matkins’ San Francisco office, where he practices environmental and land use law. He manages the permit entitlement process for proposed projects, and specializes in federal, state and local permits involving environmental and natural resource issues.