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UPDATE: California Proposes New “Procedures” for Filling Wetlands and Other Waters of the State

California’s State Water Resources Control Board (Water Board) is pressing ahead with its decade-long effort to adopt a State definition of “wetlands” and new wetland permitting procedures.  The Water Board has been working to define State “wetlands” since 2007, following the U.S. Supreme Court’s Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANNC) and Rapanos v. United States & Carabell v. United States (Rapanos) decisions that limited the U.S. Army Corps’ of Engineers (Corps) jurisdiction over isolated wetlands.  

The Water Board’s proposed “State Wetland Definition and Procedures for Discharges of Dredged or Fill Materials to Waters of the State,” (Permitting Procedures) published on July 21, 2017, would define State wetlands, create a jurisdictional determination process, and require applicant’s to prepare an alternatives analysis for water quality certifications issued under Section 401 of the federal Clean Water Act (CWA) and waste discharge requirements issued under the State Porter-Cologne Water Quality Control Act and to provide mitigation for the fill of State waters.  The Water Board issued a prior draft of the Permitting Procedures last year.  The 2016 proposal drew sharp criticism from the Corps, several State transportation agencies, utility providers, cities, counties, industry groups, and even some environmental groups.  The Water Board’s responses to comments largely dismissed concerns that the proposal would unnecessarily duplicate the federal CWA permit process and impede the Corps’ streamlined nationwide permitting program by requiring an alternatives analysis for small fill projects. 

The CWA and its implementing regulations, which are administered by the Corps and Environmental Protection Agency (EPA), include science-based criteria for delineating wetlands, intensive scrutiny of applications to fill wetlands and other aquatic resources to ensure that individual fill permits are issued only for the least environmentally damaging alternative (known as the “LEDPA”) pursuant to the EPA’s 404(b)(1) Guidelines, and rigorous mitigation standards to prevent a net loss of aquatic resources.  The proposed Permitting Procedures would adopt modified versions of the Corps’ existing delineation procedures, 404(b)(1) Guidelines and the compensatory mitigation rule.  The Water Board’s proposal expands the definition of a “wetland” to include features that typically do not meet the Corps’ definition, and give the Regional Water Quality Control Boards the discretion to require an alternatives analysis even for small fill projects.  To the extent the Permitting Procedures differ from the existing federal CWA regulatory program or if the Regional Boards reach different conclusions about the LEDPA, it will inevitably result in conflicts between the Corps and Regional Boards and longer permitting delays.

If adopted, the proposal will have far-reaching consequences for both private development projects and public infrastructure improvements.  The Water Board is accepting comments on the proposal through September 7 and will hold a public hearing at the CalEPA Headquarters in Sacramento on September 6, 2017.  The Water Board may adopt the Permitting Procedures as early as this winter. 

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 Permitting Procedures or to discuss how they may affect your project, please contact Shawn Zovod in Lubin Olson’s Land Use and Real Estate Practice Group.

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