State Water Board Renews Effort to Adopt Uniform Statewide Wetland Policy

Tire Rut_cropOn June 17, 2016, the State Water Resources Control Board reissued its proposed state wetland policy in a new format, titled “Procedures for Discharges of Dredged or Fill Materials to Waters of the State”. The purpose of this document is to unify the approach used by the Regional Water Boards for approving projects that occur in “waters of the state”. Because there has not been a state wetland policy, Regional Boards have put in place local policies within their basin plans or adopted practices that differ across the state. Once a statewide policy is adopted, it should bring more uniformity and certainty to the state permitting process; however, there are concerns that it will result in considerably more effort on the part of property owners and government agencies seeking permits from federal and state agencies.

Potential Changes Affecting Applicants

After a number of years of discussion, the State Board has clarified that the wetland definition being used will be consistent with practices of the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency, with the exception that the state will consider any feature that does not have vegetation, but does have sufficient hydrology and hydric soils to be a “wetland” under this policy. As the draft states, this will mean that “oceans, lakes, and rivers” will be considered wetlands and subject to this policy. In addition, the State Board recommends that Regional Boards can determine that certain features are wetlands on a case-by-case basis. While there are some exemptions discussed in the draft policy that would exclude features such as constructed treatment wetlands from the policy, all of the features exempted under the Corps Preamble such as construction related depressions, artificial water features, ditches, and erosion gullies will not be excluded under the proposed state policy. Ditches were the particular focus within the EPA’s new “Waters of the U.S.” definition that is enjoined while under federal court review. It is clear that without adopting these exclusions, many features will be considered “wetlands” under this policy despite their anthropogenic origin.

The application process will also likely be more rigorous than currently required by Regional Boards or the Corps. For example, the State Board is proposing that wetland delineations conducted and approved by the Corps based on dry season sampling be supplemented with data during the wet season, effectively extending the time needed for the preparation and approval of delineation reports. Regional Boards will also have authority on a case-by-case basis to request information on the potential impacts of climate change related to the proposed project, to undertake a watershed profile to justify the compensatory mitigation, and to require an alternatives analysis (similar to a 404(b)1 Alternatives Analysis used by the EPA). The latter would be required for any type of Corps permit, including Nationwide Permits that are currently exempt from this practice on an individual basis. In addition, Regional Boards, while coordinating with federal authorities, would, at their discretion, have the ability to require additional information and analysis on alternatives beyond that accepted by the Corps.

While mitigation policies are generally aligned with the Corps and EPA 2008 compensatory mitigation rule, the preference for mitigation banks is not clearly stated in the new policy. In addition, applicants will need to prepare wetland assessments of the impacted wetlands in order to determine the adequacy of their mitigation approach to off-set the wetland loss. Watershed level planning and locating mitigation within local watersheds is encouraged; however, the size of the watershed is left undefined and therefore may limit available mitigation areas if too small or be exceedingly difficult to analyze if too large.

If implemented as proposed, the permitting process will be extended to a significantly larger number of areas being treated as “wetlands” and will require more information and justification than is currently the case for many Regional Boards. However, once in place, the new policy has the advantage of leveling the playing field within the state though at a higher level than currently exists.

Comment Period

The proposed state wetland policy will be subject to public hearings on June 28, 2016 in Los Angeles; July 7, 2016 in Rancho Cordova; and July 19, 2016 in Sacramento. Written comments are due August 4, 2016. Read the details in the State Water Board Proposed Amendment Notice.