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UPDATE: New Wetland Permitting Procedures — An Unwelcome One-Two Punch for California Development

The State Water Resources Control Board is poised to adopt a new State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State.  If the Water Board adopts the final proposal that it released earlier this month, it will have far-reaching consequences for private development projects and public infrastructure improvements.  https://www.linkedin.com/feed/update/urn:li:activity:6488561371733721088/  The new procedures will increase the regulatory burden of securing 401 water quality certifications and waste discharge requirements, and require permits for more resources, including water bodies that currently do not qualify as “wetlands.”  https://www.linkedin.com/feed/update/urn:li:activity:6297956328216367105/   The Water Board may adopt the new procedures on February 5, 2019, and if it does so, the new rules would likely take effect this summer.  

California has been working on a rule to define wetlands and “waters of the state” for more than a decade, ostensibly in response to a Supreme Court decision limiting federal jurisdiction over “isolated” wetlands.  The Water Board’s current proposal goes far beyond filling the federal regulatory hole, and will apply a new set of State-imposed rules that include a State wetland delineation process, minimum mitigation ratios, and require an “alternatives analysis” for small fill projects that qualify for a nationwide permit.  The Water Board has been eager to move forward with its new procedures and the proposal gained momentum last month when the Environmental Protection Agency and U.S. Army Corps of Engineers proposed to further limit the scope of federal jurisdiction over wetlands and other waters of the U.S.  https://www.linkedin.com/feed/update/urn:li:activity:6478359266284703744/  However, the federal proposal will likely take years to come to fruition as it winds its way through the public review and inevitable litigation processes. 

If adopted, the federal proposal to scale back the waters subject to federal jurisdiction under the Clean Water Act will also complicate Endangered Species Act permitting in California.  Private and public development projects that require authorization to “take” a federal endangered species often secure the necessary authorization through a “Section 7 consultation” between the U.S. Army Corps of Engineers and Fish & Wildlife Service.  If the Corps no longer has any permitting authority under the federal Clean Water Act, private and public development projects will have to secure take authorization directly from the Fish & Wildlife Service through the Habitat Conservation Plan permitting process.  The Habitat Conservation Plan process generally takes far longer than the Section 7 consultation process, and can delay projects for up to several years.  Moreover, the Fish & Wildlife Service’s Habitat Conservation Plan staff is already stretched very thin, and Habitat Conservation Plans for individual projects are a low priority.

The federal proposal to limit jurisdiction over wetlands and the State’s proposal to expand its jurisdiction over wetland resources will be an unwelcome one-two punch to the development community, and will undoubtedly undermine the State’s ability to meet its housing and infrastructure goals.  As I’ve said many times, a far better State approach would be to streamline the wetland permitting process, eliminate alternative analyses for small fills and fills of low quality features, place greater emphasis on mitigation of low quality features than avoidance, and put resources into permitting mitigation banks rather than permit regulations.

This posting is intended to summarize recent developments in the law for informational purposes only.  It is not intended, and does not constitute, legal advice.  We make no warranties of its completeness or accuracy.  Because questions regarding the application and interpretation of these and other laws require qualified legal analysis, we ask that you direct any such questions to us following an appropriate, formal retention.  For more information about the new wetland permitting procedures or to discuss how they may affect your project, please contact Shawn Zovod in Lubin Olson’s Natural Resources, Land Use and Real Estate Practice Group.

 

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