The State Water Resources Control Board has gotten an earful about its recent proposal of a major new regulatory program to govern discharges of dredged or fill material into wetlands.  Under its proposal, issued June 17, 2016, the State Board would (1) adopt a new definition of “wetlands” differing from the definition long used by the State Board and regional water quality control boards and the U.S. Army Corps of Engineers (“USACE”) under the federal Clean Water Act (“CWA”), (2) establish a new, more complex permit process, and (3) adopt new standards for deciding whether to permit projects and, if so, what mitigation to require for impacts to wetlands.

During the decade following decisions of the U.S. Supreme Court in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”) and Rapanos v. United States, 547 U.S. 715 (2006) that the CWA does not reach all waters, the State Board circulated various proposals to fill the so-called “SWANCC gap” by developing procedures and policies to regulate discharges of waste into the tiny portion of waters in the state not regulated by the USACE under the CWA.  The State Board’s recent proposal, however, covers not just the SWANCC gap, the raison d’être of its previous proposals, but rather extends to all waters of the state.

The State Board initially gave the public 45 days to comment on its new proposal, but in response to requests for more time, extended the comment period—though only by two weeks—and said that, after considering comments, it would issue a revised draft for a second comment period.

The Board has plenty to consider, as it received voluminous critical comments from a wide spectrum of the regulated community, public agencies, and environmental groups.

A coalition of over 30 business and trade organizations questioned the need for the proposed program.  It first pointed out that the SWANCC gap is “vanishingly small” since very few waters are not regulated by the USACE.  Moreover, those few waters are already regulated by the State Board and regional water quality control boards under existing state law and regulations.  Nor do claims of wetland losses justify the program, argued the coalition, since current applicants could not be required to make up for historical losses and, under current regulations, any losses of wetlands to regulated activities are already more than offset by mitigation required by permitting agencies.  As for the State Board’s expressed desire for statewide consistency, the coalition noted that the proposed program, which would enable agency staffs to devise “case-by-case” approaches for many determinations, could hardly serve that purpose.

The coalition questioned as well the Board’s authority to regulate placement of clean “dredged or fill material” for beneficial purposes such as building homes under a state statute that authorizes it to regulate only discharges of “waste,” defined by the statute to include sewage and all other waste substances associated with human habitation, or of human or animal origin, or from any producing, manufacturing, or processing operation—stuff calling for disposal.  It further argued that the proposed permit process and associated requirements would duplicate and conflict in many respects with the USACE’s existing regulatory program and would as well undercut the USACE’s nationwide permit program designed to streamline review of activities having only minimal environmental effects.  Particular concerns were raised about the new, different definition of “wetlands” and about a proposed “alternatives analysis” that largely duplicates the USACE’s existing analysis yet also unnecessarily differs in troublesome respects.  Finally, the coalition expressed concern that the significant burden this new regulatory program would place on the staffs and resources of the State Board and regional boards, without any plan or proposal to increase agency staff or funding to handle the additional load, would compromise the boards’ existing mission and cause more delay and uncertainty for applicants.

Federal, state, and local agencies weighed in as well.  The USACE in particular expressed considerable concern—to say the least.  It declared that the State Board “lacks authority” to proceed with its proposal because the CWA creates a specific mechanism for a state desiring to administer its own permit program to regulate discharges of dredged or fill material into waters of the United States within its boundaries, and Congress’s prescription of that mechanism “preempts” state law with respect to regulation of such discharges.  The USACE noted as well that as defined in state law “waste does not include discharges of dredge or fill material.”  To the extent the State Board has authority to regulate discharges of dredged or fill material into waters of the state, the USACE stated, “[t]o avoid conflicts and impacts on the regulated public, the proposed [program] should be aligned with the USACE Regulatory Program to the maximum extent possible [and w]here alignment cannot be achieved, deference should be given to the USACE Regulatory Program requirements . . . especially with regards to aquatic resource delineations; restrictions on discharges, including determinations of the least environmentally damaging practicable alternative (LEDPA) under the EPA’s [Guidelines]; determinations of the appropriate amount and type of compensatory mitigation; and the approval of final mitigation and monitoring plans.”  The USACE further maintained that the proposed program “cannot add more time or extra steps to the USACE review process” and the USACE “will not work on a MOU [i.e., Memorandum of Understanding with the State Board regarding coordination of the federal and state programs] until after the proposed [program is] in place and [the USACE’s] concerns . . . have been addressed to [its] satisfaction.”  In short, you don’t have authority to do this, and if you go ahead anyway, do things our way, don’t add any steps to our process or slow us down, and don’t expect any cooperation from us until you’ve addressed these concerns to our satisfaction.  The USACE might well have closed with “Hooah!”

California Department of Water Resources, Caltrans, California High-Speed Rail Authority and more than a dozen other agencies echoed some of the concerns expressed by the coalition and USACE and otherwise expressed misgivings about the proposed program as well.

Seven environmental organizations also wrote to say they believe a strong state wetlands policy is essential, but are “extremely disappointed” with the approach proposed by the State Board, arguing that it undermines the purpose of protecting the state’s wetlands and could make it even more difficult to do so.

When initially making its proposal, the State Board said it planned to decide on its adoption before the end of this year.  Since receiving the first round of comments though, the Board has not yet signaled when it anticipates issuing a revised proposal for a second round of comments.

 

(Extended version of an article appearing in California Land Use Policy & Law Reporter, October 2016.)

 

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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