State regulation would broaden wetlands rules


Issue Date: January 9, 2019
By Ching Lee

Saying that it will continue to protect environmentally sensitive waterways such as wetlands in California, even if federal protections on waters of the U.S. are limited, the State Water Resources Control Board has unveiled a final draft on how it plans to regulate dredge-and-fill activities in the state.

The draft, released last week, provides a definition of what the state considers a wetland. It also lays out permitting procedures for discharges of dredged or fill material to waters of the state.

The previous draft was released in 2017. The water board said it tentatively plans to consider adopting the procedures Feb. 5 in Sacramento. There will be a public workshop on the proposal Jan. 22, also in Sacramento.

Though the state has been developing its own wetlands policy since 2004, this final rule comes several weeks after the Trump administration proposed a new Clean Water Rule it said is intended to help landowners distinguish more easily what is or isn't a "water of the United States."

That new federal rule would replace a 2015 WOTUS rule by the Obama administration that farm groups say would have given the U.S. Environmental Protection Agency and the Army Corps of Engineers extensive authority to regulate routine farming activities.

If adopted, the state's final rule would expand the permitting jurisdiction of regional water boards and impose additional regulatory requirements on certain farming activities and operations.

The state water board said its draft procedures "will protect all waters of the state at a time when the current federal Administration is proposing to dramatically reduce the scope of federal Clean Water Act jurisdiction."

California Farm Bureau Federation Senior Counsel Kari Fisher said farm groups have many of the same concerns with this version as with the state's previous draft, saying the current proposal goes "beyond regulating discharges to wetland waters of the state that fall outside the protection of the federal Clean Water Act."

"This would regulate all waters of the state, including all waters of the U.S. already protected under the Clean Water Act and non-wetland waters of the state already protected under the California Department of Fish and Wildlife lake and streambed alteration program," she said.

Specifically, the state defines an area as a wetland if it meets three criteria: wetland hydrology, wetland soils and wetland plants, if the land is vegetated. An area could be considered a wetland if the upper soil surface is saturated by groundwater or shallow surface water, either continuously or intermittently. By the state's definition, it is also a wetland if the saturation lasts long enough for there to be no oxygen in the upper soil surface.

Whereas the federal definition of a wetland requires a prevalence of wetland vegetation under normal circumstances, the state definition says an area may be a wetland even if it does not support vegetation, adding that vegetated and unvegetated wetlands will be regulated in the same manner under state rules.

Fisher said the state's "overbroad" procedures would set new regulatory requirements that would affect farming activities across the state—from agricultural drainage projects to smaller projects on the field necessary for operation and crop production.

"Farmers and ranchers would now have to comply with a bevy of new and costly water-quality regulations in addition to current regulations such as those within irrigated lands regulatory programs," she said.

The state water board said its draft rule is based "in large part on the scientific documentation and conclusions supporting the existing" Army Corps three-pronged definition of a wetland. To account for arid parts of the state, the water board extends its definition to unvegetated wetlands such as mudflats and playas.

"Waters of the state are, by definition, broader than waters of the U.S.," the water board said. "These draft procedures do not change that."

But Fisher said the draft procedures would create unnecessary conflict by proposing a new wetland definition that differs from the definition used by the Army Corps since 1977.

"This would result in features being classified as a wetland by the water board but as a non-wetland waters by the Corps, leading to conflicting alternatives-analysis determinations and mitigation requirements," she added.

The state water board excludes from regulation any artificially created, temporary features less than an acre in size, such as tire ruts or other transient depressions caused by human activity—including crop irrigation and stock watering—though it will continue to regulate seasonal wetlands and small vernal pools that may be outside of federal jurisdiction.

The final draft spells out what information and analysis need to be submitted when applying for a permit to conduct dredging and filling activities. It also specifies when an alternatives analysis needs to be conducted and sets a minimum mitigation ratio for any permanent impacts to waters of the state resulting from dredge-and-fill activities.

The public workshop on the final draft will be held Jan. 22, 9:30 a.m., at the CalEPA Headquarters Building, 1001 I St., Sacramento. The public meeting to consider adoption of the final draft will be held Feb. 5, 9:30 a.m., at the same location.

(Ching Lee is an assistant editor of Ag Alert. She may be contacted at clee@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.