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Update: The State Water Resources Control Board Adopts A New State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State

On April 2, 2019, the State Water Resources Control Board adopted a new State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State (Procedures) that will expand the State and Regional Water Quality Control Boards’ jurisdiction over wetlands and other waters.  California has been working on a rule to define wetlands and “waters of the state” for more than a decade, ostensibly in response to Supreme Court decisions limiting federal jurisdiction over “isolated” wetlands.  However, the new rules go 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.

There is some good news in the new rules for public works departments and ranchers and farmers.  Artificial wetlands that are used and maintained primarily for stormwater management or agricultural purposes will not be considered waters of the State subject to the new Procedures.  But, there are recapture provisions even for these exclusions that will have to be carefully examined.

The new rules will take effect in about a year, following approval by the state Office of Administrative Law, and will apply only to new applications.  But beware, if the Board finds an application was obviously submitted prematurely to avoid complying with the new Procedures, the Board will deny the application and require a new application that is subject to the new rules.  If you are thinking about applying to the U.S. Army Corps of Engineers or a Regional Water Quality Control Board for a permit to fill a wetland or other water, start your application sooner rather than later so that it’s relatively complete by the end of the year.

A Fact Sheet and final draft of the new Procedures is available at https://www.waterboards.ca.gov/water_issues/programs/cwa401/docs/wrapp/dredge_and_fill_draft_procedures_fact_sheet_022519_update.pdf.

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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