Newly Released Preliminary Draft Broadens State Board's Jurisdiction Over 'Waters of the State'
On March 9, 2012, the State Water Quality Control Board ("State Board") released the preliminary draft of its proposed Wetland Area Protection and Dredge and Fill Permitting Policy ("Preliminary Draft Wetland Permitting Policy").1 If adopted, this policy would change the definition of "wetland" and would usher in a new era of state-led permitting, extending the State Board's permitting jurisdiction over a broader area of "waters of the state." Such a change would have significant effects on projects in urban, agricultural and redevelopment sites.
As described in the notice releasing this document, the Preliminary Draft Wetland Permitting Policy is intended to provide a uniform approach to wetland regulation and "fill the gap" in federal wetland regulation left after the U.S. Supreme Court in SWANCC v. United States (2001) 531 U.S. 159 limited the scope of federal Clean Water Act (CWA) jurisdiction. The policy sets forth:
- a wetland definition
- a wetland delineation method
- a wetland and riparian area assessment and monitoring framework
- permit procedures for dredge and fill discharges to waters of the state
Wetland Definition
First, in Section V, the Preliminary Draft Wetland Permitting Policy provides a new wetland definition that is a significant departure from past State Board practice that will result in major consequences from a permitting perspective. Specifically, based on the State Board's concern that the state has failed to effectuate the "no net loss" provisions in Executive Order W-59-93, the State Board has proposed moving from the so-called three parameter test used by the U.S. Army Corps of Engineers ("Corps") and the U.S. Environmental Protection Agency (EPA) under the CWA to a one parameter test. The purpose of this new definition is to capture the full range of areas the State Board believes should be regulated waters of the state and prevent the loss of beneficial ecosystem services performed by wetlands.
To that end, the Preliminary Draft Wetland Permitting Policy defines an area as a wetland
... if under normal circumstances, it (1) is continuously or recurrently inundated with shallow water or saturated within the upper substrate; (2) has anaerobic conditions within the upper substrate caused by such hydrology; and (3) either lacks vegetation or the vegetation is dominated by hydrophytes.
Basically, this definition, according to the underlying technical reports, covers all areas that have a wet upper substrate for a minimum of seven to 14 days. The federal scheme, on the other hand, defines areas as wetlands only if they meet three parameters - soils, vegetation and hydrology.
Thus, this definition appears to significantly expand the areas subject to the new State Board permitting process. At the same time, the list of exemptions appears narrower than those provided by the Corps and EPA at the federal level, as the federal exemptions are not simply cross referenced, but rather are newly, and in some instances, more narrowly defined.
Wetland Delineation Method
Second, in Section VI, the Preliminary Draft Wetland Permitting Policy requires a delineation approach that creates a new and potentially multi-year, or at least seasonally extended, process in some circumstances, because the wetland definition applies to areas that are wet "recurrently," which is not defined and makes delineations heavily dependent on the water year and the timing of the last rainfall. Basically, the Preliminary Draft Wetland Permitting Policy instructs that delineations should be done based on the 1987 Corps wetland delineation manual ... except where the manual doesn't apply. Specifically, the 1987 manual would not apply to define the limits of jurisdiction since the state has defined different limits of jurisdiction, (including through the newly proposed wetland definition); therefore arguably, it would not apply to state waters beyond federal jurisdiction. In addition the 1987 manual would not apply when a non-vegetated wetland is at issue or when "normal circumstances," "altered circumstances" and "difficult-to-resolve conditions" are at issue, since this Preliminary Draft Wetland Permitting Policy contains new definitions of those terms. In these circumstances, the policy provides that "supplemental field data from the wet season" would be needed. Thus, this suggests that delineations may need to be done twice - once for the federal process and once for the state.
Wetland Assessment
Third, in Section VII, the Preliminary Draft Wetland Permitting Policy sets out a framework for coordinated tracking and assessment of impacts to wetlands based on a watershed approach. The policy directs all state agencies to use the California Wetland and Riparian Assessment and Monitoring Program (WRAMP), which will standardize wetland assessments and provide public access to the information.
Wetland Permitting
Finally, in Section VIII, with this expanded definition and new delineation method, the Preliminary Draft Wetland Permitting Policy proposes a sweeping new state permitting scheme based on the watershed impact approach that looks to both "historic and potential aquatic resource conditions." This new scheme reaches back into the past (covering circumstances that would be present in the absence of altered circumstances), out in the future (covering any activity that "brings an area of a water of the state into a use to which it was not previously subject") and in areas that are not even wet (covering all activities within 150 feet of a water of the state, including the newly defined wetland areas).
Under this new process, a discharge shall not be permitted unless it is the least environmentally damaging practicable alternative (LEDPA). At first blush, this process sounds like it would conform to the federal process set forth required under the CWA section 404(b)(1) and would merely cover that class of waters that the federal program would miss. However, it is not clear that this is in fact the case. Furthermore, the federal 404(b)(1) process is by itself a steep permitting hurdle that requires an alternatives analysis to prove that the proposed project is the LEDPA, and the state version is altered in various ways that increase the burden. Finally, there are outright contradictions in approach between the federal CWA 404 permit regime and the Preliminary Draft Wetland Permitting Policy. For example, in the mitigation component, the State Board prioritizes on-site and in-kind mitigation, whereas the Corps and EPA mitigation policies prioritize mitigation banks.
While the wetland permitting policy is intended to complement the existing regulatory framework and "fill the gaps currently caused by the separate federal and state regulations and programs,"2 the program proposed in the Preliminary Draft Wetland Permitting Policy appears to go well beyond "filling the gap." One could argue that it sets out an overlapping, independent state permitting process that may in some cases trump, or at least contradict, the federal process.
Conclusion
As discussed above, a significant new resource permitting scheme is in the works that will dwarf the current waste discharge report process currently in place for state waters and wetlands. The Preliminary Draft Wetland Permitting Policy is an advanced copy; the formal draft will be released, and a notice and comment period will commence "later this year."3
Holland & Knight is available to help members of the regulated community understand the implications of this proposal and draft comments.
1 State Board, Preliminary Draft Wetlands Permitting Policy, March 9, 2012 (released at http://www.waterboards.ca.gov/water_issues/programs/cwa401/wrapp.shtml).
2 State Board, Initial Study for Wetland Area Protection Policy and Dredge and Fill Regulations at 2, 2011.
3 Public Notice of Preliminary Draft Wetlands Permitting Policy released at http://www.waterboards.ca.gov/water_issues/programs/cwa401/wrapp.shtml.
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