United States: California Proposes New Permitting Procedures For Impacts To Wetlands And Waters Of The State

On July 21, 2017, the California State Water Resources Control Board (State Board) published its latest proposal for new permitting procedures that would apply to waters of the State, including wetlands. The proposal – which would define wetlands, create delineation procedures, and impose requirements for an alternatives analysis and mitigation – will be vetted through workshops and a public hearing, with the public comment period ending September 7, 2017. The State Board could adopt the proposal as early as the fall of 2017.

The proposed State Wetland Definition and Procedures for Discharges of Dredged or Fill Materials to Waters of the State represent the latest development in a program the State Board has been working on since 2007, in response to U.S. Supreme Court decisions narrowing the scope of aquatic resources subject to the federal Clean Water Act (CWA). The State Board issued its prior draft of the proposal just over a year ago, drawing opposition from industry groups, environmental organizations, and other state and federal agencies. The current proposal addresses comments on the prior draft by revising provisions that deal with jurisdictional determinations, alternatives analyses, and other key parts of the procedures.

Like the 2016 draft, the current proposal contains a definition of "wetlands" that is similar, but not identical, to the federal definition in the CWA. The federal definition requires three criteria to be met to define a feature as a wetland, but the proposed State definition requires only two of those criteria in certain circumstances. As a result, some features that would not qualify as wetlands under federal law could be regulated under the proposed State procedures. In response to comments on the 2016 draft, the current proposal also includes a list of wetlands that are considered waters of the State, and thus subject to the proposed permitting procedures, and others that are not – primarily those that are artificially created and used for industrial, agricultural, or water quality treatment purposes.

Under the proposal, Regional Water Quality Control Boards would have the authority to require an "alternatives analysis" before permitting fill of waters of the state, similar to the analysis required before the U.S. Army Corps of Engineers can permit a project under Section 404 of the CWA. Like its federal analogue, the state alternatives analysis would require that any permitted project be the least environmentally damaging practicable alternative, or LEDPA – but the existence of parallel requirements under state and federal law would create the possibility that state and federal regulators may reach different LEDPA determinations or may disagree on the level of analysis required for a project.

The proposal also includes mitigation requirements that are based on the Corps and U.S. EPA's 2008 mitigation rule. Like the definition of wetlands, these new requirements are similar but not identical to their federal counterparts. The State Board believes that, in most cases, these differences will not materially affect the permitting process. However, the overlapping regulatory framework would create the potential for conflicting determinations from different agencies.

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