If you thought wars over inland “waters” would at least slow down now that the Trump Administration is in control, think again, at least in California, where the State Water Resources Control Board (SWRCB) has hatched a new approach to deal with the “Waters of the State” (WOS) that goes way beyond the scope of federal rules.
Called the “State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State” this regulatory scheme includes a definition of wetlands applicable to State Water Board programs. It is much broader than the federal definition under the Clean Water Act (CWA), so much so that the Army Corps of Engineers has written to contest it.
The proposed rule also creates a new permitting procedure, including mandatory “alternatives analysis,” which expands the authority of the State Water Board and will increase development time by an unknown amount of time. This and the scope of the new rule is driving the development community bonkers, including concerns about the competency of regulators to actually implement the new rules. This alternative analysis is worrisome because it potentially adds years to an already burdensome permitting process, opens the door to environmentalist meddling in the process and diverges from federal requirements.
The biggest challenge is trying to understand what the state considers a “wetland,” so here’s the new wording:
An area is wetland if, 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.
It’s okay—nobody else understands this either. It sounds pretty much like creeks, puddles, ditches and ponds—with water plants or not, which could be pretty much anywhere. What is buried in the new scheme is a three tier level of definition which bring the state control down to as little as one tenth of an acre or 100-linear feet of a WOS.
The California definition of wetlands does not require all three parameters and includes “wetlands created by modification of water of the state” and “artificial wetlands,” which result from human activity and that meet one of the following criteria:
- Approved by an agency as mitigation for impacts to other waters of the state, unless the mitigation is approved with an explicit limited duration
- Specifically identified in a water quality control plan as a wetland or other water of the state
- Resulted from historic human activity and has become a relatively permanent part of the natural landscape
- Greater than or equal to 1 acre in size, unless used for one of the following purposes: industrial or municipal wastewater treatment or disposal; settling of sediment; stormwater detention, infiltration or treatment; agricultural crop irrigation or stock watering; fire suppression; cooling water; active surface mining; and log storage – however, “artificial wetlands”—which they all are—used for one of these enumerated purposes may be characterized as a protected wetland if it meets one of the other listed criteria
According to the proposed rule, to call these waters of the state, a project must use existing Corps manuals, except that if there is conflict with terms in these manuals and terms in the new rule, in which case, the terms in the proposed rule will be used. If an aquatic feature meets the wetland definition, the burden is on the applicant to demonstrate that the wetland is not a water of the state.
If you want to read up on the proposed rule, be prepared, as the regulation is 50-pages long, with a 200-page staff report explaining it and 250-page response to comments, visit // www.waterboards.ca.gov/water_issue s/programs/cwa401/wrapp.shtml