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Wetlands Update: California’s New Draft Policy for Permitting State Wetlands

Posted in Agricultural Law, Construction, Water Law, wetlands

The State Water Resources Control Board has released a second version of what is called the “Preliminary Draft” of a policy to establish a state definition of “wetlands” The goal of the eventual regulation is to create a permitting system under which the nine Regional Water Boards would be required to process permits for Dredge and Fill discharges. Currently there is no statewide policy adopted by the State Board or any other state agency that specifically regulates wetlands. The Board believes these regulations are necessary because of the US Supreme Court decision in the Swancc (531 U.S. 159 (2001)) case and the Rapanos 547 U.S. 715 (2006) decision which limits the federal authority over certain wetlands.

As directed by the State Water Board in Resolution No. 2008-0026, the Wetland and Riparian Area Protection Policy is to be propounded in three phases which will allow for necessary infrastructure and program development. The current Phase 1 effort is intended to protect all waters of the State, including wetlands, from dredge and fill discharges. It includes a wetlands definition and associated delineation methods, an assessment framework for collecting and reporting aquatic resource information, and requirements applicable to discharges of dredged or fill material. Phases 2 and 3 are not under consideration at this time. Current efforts on Phase 1 are focused on developing a Draft Program Environmental Impact Report and accompanying draft policy and draft regulation text.

The Preliminary Policy contains four major elements 1) a wetlands definition 2) a wetlands delineation methodology 3) a wetlands assessment and monitoring framework and 4) permitting procedures for Dredge and Fill projects. Wetlands would be defined as an area 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 within the upper substrate and 3) the area either lacks vegetation or the vegetation is dominated by hydrophytes. The major difference between this definition and the federal definition is the state definition does not require the occurrence of specific water related vegetation to call an area a wetland.

A number of activities will be exempt including some that are already exempt under section 404 of the federal Clean Water Act. In addition, also exempt are activities covered by various engineer Corps of Engineers’ Regulatory guidance letters (such as farm roads, agricultural conversions, vegetative operations) and areas covered by an Army Corps US EPA memorandum of understanding related to agricultural areas. There are also three types of exemption for existing areas. Excluded areas include prior converted croplands; constructed treatment wetlands and certain aquatic areas determined not to be waters of United States pursuant to State Board or Regional Water Quality Board orders. The most recent draft can be found at this address: