California Wetlands Remain Protected under Clean Water Act Rollback
On May 25, 2023, the United States Supreme Court ruled on a case regarding Environmental Protection Agency’s (EPA’s) authority to regulate wetlands and waters that are not navigable. For several decades, the EPA along with the U.S. Army Corps of Engineers have issued definitions through federal rule making processes of what are Waters of the U.S. and which wetlands and waters beyond the navigable waterways are included in the definition. This is important because Waters of the U.S. are regulated by the EPA under the Clean Water Act and impacts to Waters of the U.S. require federal permits and oversight to ensure the health of our waters, and thereby people and the environment.
The decision has left uncertainty on several items related to federal wetland regulations including how the ruling will impact the Waters of the U.S. definition that went into effect in March of this year. WRA will continue to follow the updates regarding the outcomes of this ruling, although it is likely to be invalidated. Regardless of changes in federal wetland status, most wetlands in California are still protected and regulated by the State Water Board under the Porter-Cologne Water Quality Control Act. The State Water Board released an announcement the same day as the Supreme Court decision with a similar effect: protections for California’s wetlands remain. In 2019, the State Water Board adopted the State Wetland Definition and Procedures (Procedures) which provides the definition of wetlands under State protection and procedures for approval of discharges or fill, whether that is through the Clean Water Act Section 401 or Porter-Cologne Water Quality Control Act. The Procedures were approved at the time the Trump administration was attempting to roll back the definition of the Waters of the U.S. through the rule-making process.
In summary, the definition of federal wetlands is uncertain at this time, but is likely to be much narrower than the current definition. This will reduce the need for federal permits related to wetland impacts in many situations; however, state protections remain in place. Thus, the most likely change will be the permit route for impacts to wetlands in the state with the State and/or Regional Water Boards taking the lead role. WRA’s regulatory specialists will provide updates as the dust settles from the Supreme Court’s decision. If you have questions on topics specific to your situation or project, please reach out to us on our Contact Us page.