State Water Board Considers Staff Proposal for a New Statewide Program to Regulate Wetlands — and Questions Whether There is a Need for Any Such Program
For a decade, the staff of the State Water Resources Control Board has been developing a proposal for a major new regulatory program to govern discharges of dredged or fill material into waters and wetlands. The proposal 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 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. The staff has presented versions of its proposal to the Board several times over the years, but the Board has so far not seen fit to adopt any of them. The Board is currently scheduled to hold a workshop on the staff’s latest iteration of the program on March 5 and meet on April 2 to consider adopting it.
In meetings and workshops throughout this time and most recently in 2016 and again in January and February of this year, the State Board heard criticism of many aspects, large and small, of the proposed program. Why invent a new definition of “wetlands” differing from any used by federal and state agencies in four decades of wetland regulation, thus requiring landowners to map their lands two ways and address which areas are subject to the Board’s differing regulations? Why devise new, extensive “alternatives analysis” requirements differing from the already stringent requirements of the Environmental Protection Agency and Corps, thus compelling landowners to search for and assess alternatives two different ways and report to federal and state agencies both ways? Why apparently undo “prior converted cropland,” defined as not waters or wetlands under federal law, but redefined by the staff as wetlands, and thus impose substantial new regulatory burdens on California’s farmers? There is plenty more of that sort. The Board also heard arguments of a more fundamental sort—that there is no need for any such program at all.
The staff has offered three reasons to justify a new regulatory program. None stand up to scrutiny, say critics of the proposal.
First, pointing to two U.S. Supreme Court decisions, 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), holding that the CWA does not reach all waters, the staff declared that a “SWANCC gap” leaves some wetlands unprotected, hence the need for a state regulatory program.
For two reasons though the so-called SWANNC gap is but a baseless bumper sticker. First, any gap in federal regulation is exceedingly small, hardly enough to justify a new regulatory program, and certainly not one that regulates not just wetlands outside federal jurisdiction, but all waters and wetlands throughout the state. (The staff had for the better part of a decade proposed regulating only waters and wetlands not regulated by the federal government, but recently expanded its proposal to cover all waters and wetlands in the state.) The staff has estimated that the gap extends to perhaps one to three percent of the state’s waters and wetlands.
Even that estimate though vastly overstates the matter. The Corps, which regulates wetlands under the CWA, routinely identifies regulated waters and wetlands using either of two devices, “preliminary” or “approved” jurisdictional determinations. Preliminary jurisdictional determinations basically delineate all waters and wetlands on a site regardless of whether federal law would extend to them. Approved jurisdictional determinations include consideration of federal law and delineate only waters and wetlands subject to federal regulation. (Affirming that federal jurisdiction covers the vast majority of waters and wetlands, in practice these two devices commonly show little or no difference in the areas delineated.) Permit applicants and others commonly choose to proceed with preliminary jurisdictional determinations to govern their activities and permit applications because obtaining such determinations is considerably quicker and cheaper. Moreover, since the state already does regulate wetlands outside federal jurisdiction, permit applicants in California so far have had little incentive to bother distinguishing areas subject to federal or state regulation. For this reason, the Corps typically issues thousands of preliminary jurisdictional determinations in California each year and only a handful, a score or two, of approved jurisdictional determinations. The entirety of the areas in the so-called “gap” in federal regulation thus can be counted on fingers and toes.
Second, the State and Regional Boards already assert and exercise authority to regulate activities in wetlands outside federal jurisdiction by issuing or denying “waste discharge requirements” (the statutory term for “permits”) under the state Porter-Cologne Act. (State and local agencies also generally regulate projects in such areas under the California Environmental Quality Act (“CEQA”) and their land use and environmental regulations.) No new regulatory program is needed to do so. There is thus no gap at all.
Concerns that the Trump administration may reduce the scope of federal regulation and thus expand a “gap” do not lead to any different conclusion. Changes that have been discussed would only slightly reduce the coverage of federal regulation, and in any event existing state and local regulation would remain operative in all such areas. That alone would maintain the existing disincentive for those regulated to distinguish areas subject to federal and state regulation in California, and thus effectively leave the Corps continuing to regulate nearly all wetlands. As a practical matter nothing much would change in California.
The staff next suggests that a new regulatory program is needed to end inconsistencies in the way Regional Boards currently regulate wetlands. In its reports to the Board, though, the staff failed to provide evidence of any such inconsistencies, much less any problems or issues arising from any such inconsistencies. The staff ventured only to say that the Boards “may have different requirements and levels of analysis.” Typically if a regulatory program presents troublesome inconsistencies, it is those regulated by the program that suffer the consequences and sound the alarm. Here, there has been no such outcry by the regulated community.
Quite the contrary, pointing to various differences between the proposed program and existing federal regulations, the regulated community has raised serious concerns that the proposed program itself would introduce many problematic, costly inconsistencies between the ways federal and state agencies regulate activities in wetlands. Concerns about inconsistencies militate against, not for, adoption of the proposed new program.
Finally, the staff claims that current regulations have not been adequate to prevent losses of wetlands. Data offered by the staff, however, did not show any such thing, and indeed established much the opposite. While the state annually lost wetland acreage some decades ago, that loss has long since largely ceased, and any remaining loss generally results from natural changes and causes other than regulated activities. The regulatory program indeed generally contributes a net gain of wetlands to the state, since those permitted to undertake activities affecting wetlands generally are required to mitigate those impacts by creating and enhancing wetlands, usually in substantially greater acreages than were impacted.
Apart from failing to show that the current regulatory program falls short of protecting wetlands, the staff offered no explanation why or how its proposed program might be expected to do any better. The proposed program would be costly. The state would bear the considerable cost of additional staff, training, and resources needed to implement the complex new program, and the regulated community would incur the much greater cost of complying with it. Moreover, local agencies may claim that the added costs they incur constitute “unfunded state mandates” the board must reimburse. What, if any, incremental benefit might result over and above that already provided by existing regulation is not apparent.
A decade ago EPA grants prompted the State Board to review wetland regulation and funded initial staff efforts to develop a new regulatory program. Over the decade, bureaucratic inertia naturally has built up behind the proposal and kept the effort going. In the early years, the staff parried questions about the need for any such program, and attention largely shifted to concerns about specific aspects of the proposal. Questions about need nonetheless have persisted, and in recent years have been renewed. The State Board will next consider its staff’s proposal and hear these and other issues at its workshop on March 5, 2019, and meeting on April 2, 2019.
David Ivester
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630
