United States: California Attempts To Fill The Clean Water Act Breach

Elizabeth "Betsy" Lake is a partner in our San Francisco office and Stephanie DeHerrera is an Associate in our Los Angeles office.

State Water Board Issues Revised Rule for Definition of Wetlands and Dredge/Fill Procedures

HIGHLIGHTS:

  • The California State Water Resources Control Board (State Water Board) has published its final draft proposed rule for a "State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State" (Proposed Rule).
  • The Proposed Rule includes a definition of wetlands applicable to State Water Board programs, which is much more broad than the federal definition under the Clean Water Act (CWA).
  • The Proposed Rule also creates a new permitting procedure, including alternatives analysis, that expands the authority of the State Water Board and that will increase the level of effort of both development project proponents and state staff.
  • While the Proposed Rule's provisions are similar to its CWA counterparts, they differ in ways that are likely to confuse permitting processes due to the potential for conflicting determinations from federal and state regulating agencies.

Although the federal government under the Trump Administration is stepping back from regulations under the Clean Water Act (CWA) – see President Donald Trump's Executive Order and proposed federal rule – the state of California's proposed rule, which has been under preparation for more than a year, will more than "fill" any retreat of the Obama Administration's definition of "Waters of the United States."

The California State Water Resources Control Board (State Water Board) on July 21, 2017, published its final draft proposed rule for a "State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State" (Proposed Rule), which will be included in the state's Water Quality Control Plan for Inland Surface Waters and Enclosed Bays and Estuaries and Ocean Waters of California.

The Proposed Rule broadens the definition of "wetlands" and sets forth a new state permitting process for discharge of fill into state waters. The documents associated with the Proposed Rule are voluminous, with a 50-page rule, 200-page staff report and 250-page response to comments (addressing comments from a previous attempt to revise the state's wetland's rule). The public comment period on this Proposed Rule is open until Sept. 7, 2017, and the State Water Board expects to issue the final rule by the end of the year.

The Proposed Rule creates several concerning issues. It introduces a definition of wetlands that expands the State Water Board's jurisdiction and diverges significantly from the federal definition. Specifically, unlike the federal program that requires a feature to meet three parameters (inundation, hydric soils and hydrophytic vegetation) to be a "wetland," the state definition only requires two parameters – inundation and hydric soils – and includes man-made, artificial features, such as ornamental ponds or ditches constructed in uplands that are not subject to a separate State Water Board permit. Thus, this new definition significantly expands the reach of the State Board's regulations beyond the original stated purpose, which was to provide a consistent permitting process for isolated wetlands not subject to federal jurisdiction. The new permitting process also requires an alternatives analysis for every project as a means to "simplify" permitting procedures; however, the proposed alternatives analysis creates a more burdensome permitting process and also diverges from federal requirements.

Background

The State Water Board's Water Quality Program implements two major programs: 1) the state's CWA Section 401 program, which requires certification confirming that discharge of dredged and fill materials into "waters of the United States" pursuant to a CWA Section 404 permit will be in compliance with the state's applicable water quality standards, and 2) the state's Porter-Cologne Act, which regulates discharges of waste that may affect the quality of "waters of the state." Under the Water Quality Program, the State Water Board and/or its Regional Water Quality Control Boards (Regional Boards) issue general certification orders for specific classes of activities that are similar and result in similar impacts (General Orders) and individual certification orders for projects not covered by a General Order (Individual Orders).

The State Water Board has expressed concern that the state needs to provide clear regulations that address the fill of isolated wetlands that are not covered by the CWA and that Regional Boards do not regulate waters of the state consistently. The State Water Board issued its initial draft proposal on June 17, 2016, and received voluminous comments, including a pointed letter from the Army Corps of Engineers (Corps) that raised serious concerns regarding the State Water Board's authority to issue the regulations due to pre-emption concerns. Proceeding with the Proposed Rule, the State Water Board rejected the legal arguments contained in the Corps' comments. Specifically, the State Water Board dismissed arguments of conflict pre-emption by stating that the Corps' comments do not identify any actual or implied conflicts between the Proposed Rule and existing federal regulation that would prevent the State Water Board from complying with both state and federal law. The State Water Board also rejected field pre-emption arguments by citing a 1977 amendment to the CWA that expressly provides that it is not Congress' intent to pre-empt the field with respect to the regulation of dredge or fill materials.

Key Provisions of the Proposed Rule

Wetland Definition

With respect to waters of the state, the Proposed Rule defines wetland as:

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.

This definition of wetlands is extremely broad, diverges from the federal wetland definition and includes some features not protected under federal law. Specifically, the federal definition of wetlands requires that a feature must meet three parameters – inundations, hydric soils and hydrophytic vegetation – and enumerates "swamps, marshes, bogs, and similar areas" (14 C.F.R. §230.3). The Proposed Rule's definition of wetlands, however, 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 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 delineate 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 Proposed Rule. In case of such a conflict, 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.

Permits

The Proposed Rule provides that the State Water Board or Regional Boards may issue General Orders for specific classes of dredged or fill discharge activities that are similar and involve the same or similar types of discharges and possible adverse impacts. However, the Proposed Rule does not discuss future categories of activities that are likely to be subject to a General Order. The Proposed Rule also provides that the State Water Board or Regional Boards may issue Individual Orders, and, among other things, sets forth the requirements for project application submittals, mitigation and specified exclusions from the permitting requirements. Generally, Individual Orders are reviewed and issued by the Regional Boards, except where a project crosses Regional Board boundaries, in which case the State Water Board issues the order. For the permitting discussion below, the State Water Board and Regional Boards are jointly referred to as "Water Board."

Application Requirements/Alternatives Analysis

The Proposed Rule lists required submittals for all applications for Individual Orders. In a notable change from the last draft, the Proposed Rule requires that all applications must include an alternatives analysis. Like federal regulations under the CWA, the alternatives analysis required by the Proposed Rule requires that "no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem." In other words, the proposed discharge of dredged or fill materials must be the least environmentally damaging practical alternative (LEDPA).

If the project includes discharges that impact only waters of the U.S., the Water Board must defer to the Corps' determinations on the adequacy of the alternatives analysis or rely on a draft alternatives analysis if no final determination has been made, unless it is determined that "(1) the permitting authority was not provided an adequate opportunity to collaborate in the development of the alternatives analysis, (2) the alternatives analysis does not adequately address issues identified in writing by the State Board to the Corps during the development of the alternatives analysis, or (3) the proposed project and all of the identified alternatives would not comply with state water quality standards.

If the project includes discharges that impact waters of the state (including waters of the U.S.), the Proposed Rule gets complicated. While an alternatives analysis submitted to the Corps "may satisfy some or all" of the new state requirements, the Proposed Rule layers on additional requirements by categorizing projects and assigning various levels of alternatives analysis for each category, or tier.

  • Tier 3 projects include any project that directly impacts more than two-tenths of an acre or 300 linear feet of waters of the state, or directly impacts a bog, fen, playa, seep wetland, vernal pool, headwater creek, eelgrass bed, anadromous fish habitat, or habitat for rare, threatened or endangered species, and is not a project that inherently cannot be located at an alternate location. Tier 3 projects must provide an analysis of off-site and on-site alternatives.
  • Tier 2 projects include any project that directly impacts more than one-tenth and less than or equal to two-tenths of an acre, or more than 100 and less than or equal to 300 linear feet of waters of the state, or any project that inherently cannot be located at an alternate location (unless it meets the size requirements set forth in Tier 1). Tier 2 projects must provide an analysis of only on-site alternatives.
  • Tier 1 projects include any project that directly impacts less than or equal to one-tenth of an acre, or less than or equal to 100 linear feet of waters of the state, unless it is a Tier 3 project because it impacts a specified habitat type. Tier 1 projects must provide a description of any steps that have been or will be taken to avoid and minimize loss of, or significant adverse impacts to, beneficial uses of waters of the state.
  • Exempt projects include discharges that a) meet Water Board-certified Corps General Permits, b) are in accordance with an approved watershed plan, c) are part of a restoration or enhancement project, or d) have no permanent impacts to aquatic features.

The tiered approach to the required alternatives analysis under the Proposed Rule may result in federal and state agencies requiring different levels of alternatives analysis. Additionally, although both the Proposed Rule and federal regulations require approval of only the LEDPA, there is a risk that federal and state agencies will come to different LEDPA determinations.

Compensatory Mitigation

Unlike the wetlands definition and permitting requirements that diverge significantly from the federal CWA requirements, the Proposed Rule specifically aligns with and incorporates compensatory mitigation requirements of the federal regulations implementing the CWA. Like the federal regulations, a minimum of one-to-one acreage or length of stream reach replacement will be required to compensate for wetland or stream losses, unless an appropriate function or condition assessment method clearly demonstrates, on an exceptional basis, that a lesser amount is sufficient.

The Proposed Rule also delineates a list of mitigation strategies that track federal regulations: mitigation banking, in-lieu fees, watershed approach, on-site and in-kind approach, and off-site and/or out-of-kind approach. (See Section 230.93(b) of Subpart J of Appendix A of Proposed Rule compared to 40 C.F.R. 230.93(b).) Where feasible, the Water Board will consult and coordinate with any other public agencies that have concurrent mitigation requirements in order to reduce the cost of compliance to the applicant. The Water Board may also require, as a condition of the Order, a financial security.

Exclusions

The Proposed Rule excludes the following from compliance with the above described application procedures:

  • activities exempt under CWA Section 404(f)
  • discharges of dredged or fill material that occur within wetland areas that have been certified as prior converted cropland by the Natural Resources Conservation Service
  • discharges of dredged or fill material that are associated with routine maintenance of stormwater facilities regulated under another State Water Board order
  • certain projects (involving an appropriation of water subject to Water Code Section 1200 et seq., an activity related to a hydroelectric facility that requires a Federal Energy Regulatory Commission license or license amendment, or any other diversion of water for beneficial use) may be exempt if so determined by the Division of Water Rights.

The Bottom Line

The Proposed Rule sets up dueling federal and state permitting processes, which could result in different outcomes and conflicts between requirements of the federal and state permitting agencies. Although the Proposed Rule is consistent with some aspects of federal regulations related to waters of the U.S., it differs in important aspects that could result in differing determinations between federal and state regulators, potentially causing confusion and new obstacles in the permitting process for discharges of dredged and fill materials into waters of the U.S. and waters of the state.

The State Water Board is accepting public comments until Sept. 7, 2017, and plans to respond to comments received in Fall 2017. Adoption of the Final Rule is expected in Winter 2017.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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