While California’s newly elected Governor Brown aims to cut the state budget and, toward that end, proposes rolling back some environmental programs, such as preservation of agricultural and open space preserves under the Williamson Act, the State Water Resources Control Board appears headed in the opposite direction. The Board is developing a new regulatory program to protect wetlands—a program that largely duplicates existing federal, state, and local protections, yet differs sufficiently to compel agencies, permit applicants, environmental consultants, and others to jump through additional hoops. The cost of the new program to the public, as well as the regulated community, has yet to be gauged.

After studying the idea for three years, the Board took the first official step toward creating the new regulatory program on January 5, 2011, by issuing a notice of preparation of an environmental impact report (“EIR”) to evaluate the environmental effects of the program under the California Environmental Quality Act (“CEQA”). The Board announced two “scoping” meetings, one in Sacramento on January 31 and another in San Diego on February 8, and invited written comments until February 15 on the range of topics that should be discussed in the EIR.

In California, activities in wetlands currently are regulated under various overlapping federal, state, and local laws. Those proposing activities in wetlands typically must obtain approvals from federal, state, and local agencies. The federal Clean Water Act authorizes the U.S. Army Corps of Engineers and Environmental Protection Agency to regulate “discharges” of “pollutants” (including “dredge and fill material”) into “waters of the United States,” which the agencies define to include “wetlands.” Under section 401 of the Act, the State Water Resources Control Board and nine Regional Water Quality Control Boards generally may review, revise, and even veto any projects the Corps and EPA permit. Federal agencies proposing to undertake or permit projects must review the environmental effects of those projects, including effects on wetlands, under the National Environmental Policy Act (“NEPA”). Apart from the federal Clean Water Act, the state Porter-Cologne Water Quality Control Act authorizes the State and Regional Boards to regulate “discharges” of “waste” (which includes nearly any type of material, according to the Boards) into “waters of the State” (which includes “wetlands,” according to the Boards). Other state agencies, particularly the Department of Fish and Game, California Coastal Commission, San Francisco Bay Conservation and Development Commission, and Tahoe Regional Planning Agency, regulate wetlands of certain types or within certain areas. Cities and counties enforce local laws (general plans, zoning ordinances, subdivision, grading, and building regulations, etc.) governing activities in wetlands. State and local agencies proposing to undertake or approve projects generally must first review the projects’ environmental effects, including effects on wetlands, and avoid or mitigate those effects in keeping with CEQA.

Prompted by a perceived need to fill a “gap” resulting from two U.S. Supreme Court decisions limiting the jurisdictional reach of the Clean Water Act (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001); Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers, 547 U.S. 715 (2006)), in 2008, the State Board directed its staff to develop a draft wetland protection policy. As described in the Board’s recent notice, that policy would include (1) a new wetland definition, (2) a new “framework” for assessing and monitoring wetlands, and (3) “adjustments” to the rules for permitting activities in wetlands.

The proposed wetland definition is said to be “based” on the definition used by the Corps, but it differs in important particulars. (The Corps generally defines as “wetlands” those areas with specified wetland soils, hydrology, and vegetation. In the Board’s proposal, areas lacking wetland soils or vegetation would, in certain circumstances, nonetheless be labeled “wetlands.”) Any difference in definition, of course, would require those undertaking to identify and map wetlands to do so twice, once using the Corps’ definition and once using the Board’s definition.

To develop its desired framework, the Board intends to “collaborate with other State and federal agencies and regional and local interests to develop standardized practices and methods” of assessing and monitoring wetlands.

The Board apparently aims to “adjust” the rules in order to further restrict activities permitted in wetlands. For instance, under guidelines issued by the EPA, the Corps generally is prohibited from issuing a permit to fill wetlands if there is a practicable alternative to a proposed project that would have less adverse impact on the aquatic ecosystem, as long as the alternative does not have other significant adverse environmental consequences. As implemented by the Corps, the practicable-alternatives test is a tough nut to crack. An applicant must show why the “overall project purpose,” e.g., build a viable upscale residential community with an associated regulation golf course in the northern Sacramento County area, cannot be accomplished by moving the project to an entirely different site, whether owned by the applicant or not, or by reconfiguring the project on site to avoid wetlands. The Board proposes to prohibit any filling of wetlands if the “basic project purpose,” meaning a purpose boiled down to a basic element, e.g., provide housing, can practicably be accomplished either on site or off site without filling wetlands.

These proposals are only “Phase 1” of what the Board has in mind. In its 2008 resolution, the Board announced that Phase 2 will be to “expand the scope of the Policy to protect wetlands from [not just dredge and fill activities, but also] all other activities impacting water quality.” Phase 3 will be to “extend the Policy’s protection to riparian areas.” In the Initial Study accompanying its recent notice, the Board says that “[w]ork on Phases 2 and 3 will proceed either in parallel or in sequence,” but they “are not under consideration at this time and are not the subject of this Initial Study.”

David Ivester
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630

Disclaimer: In our Newsletters and Bulletins, Briscoe Ivester & Bazel LLP intends to present general information to the public and does not intend to provide legal advice pertaining to a particular situation.


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