Commentary: State board’s wetlands proposal needs to be clarified


Issue Date: January 30, 2019
By Kari Fisher
Kari Fisher
Proposed state procedures intended to protect wetlands from dredge-and-fill activities could bring a number of impacts to California farmers, ranchers and foresters. Staff of the state water board has been asked to clarify how the proposal would be applied to agricultural activities.
Photo/Christine Souza

It took more than a decade to create, but a revised state definition of wetlands and procedures to protect them from dredge-and-fill activities requires still more work to make the plan more clear and to reduce its impact on farmers, ranchers and foresters.

The State Water Resources Control Board released its proposed final amendments Jan. 3, under the title State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State.

According to the state water board, the proposed amendments aim to cover only those wetlands no longer protected under the federal Clean Water Act due to U.S. Supreme Court decisions, to provide consistency among regional water boards and to address current regulations that have not been adequate to prevent losses in the quality and quantity of wetlands in California.

Specifically, the procedures consist of:

  • A wetland definition;
  • A framework for determining if a wetland is a water of the state;
  • Wetland delineation procedures;
  • An application for dredge or fill activities.

Unfortunately, as currently proposed, the procedures will impact agriculture in numerous ways.

The proposed procedures go far beyond regulating discharges to wetland waters of the state that fall outside the protection of the federal Clean Water Act. They would regulate all waters of the state, including all waters of the U.S. already protected under the Clean Water Act Section 404 permitting program and Section 401 certification requirements. The procedures would also govern non-wetland waters of the state already protected under other state laws.

Additionally, as currently drafted, the procedures would create unnecessary conflict by proposing a new wetland definition that differs from the longstanding definition that has been used by the U.S. Army Corps of Engineers.

The state's proposed expanded wetland definition would include any land with hydric soils and hydrology—rice-growing land, for example—regardless of whether the land has wetland plants. The use of a two-pronged definition, in contrast to the Corps' three-pronged approach, would result in features being classified as a wetland by the state and regional water boards but as non-wetland waters by the Corps. In turn, that would lead to conflicting analyses of alternatives for achieving a project's purpose, and conflicting requirements for mitigating any wetlands impact.

Furthermore, the procedures themselves are confusing and unclear, as shown by their questionable attempts to provide exclusions. We have cited examples where the procedures try to exclude normal farming, ranching and silviculture activities that are exempt under Clean Water Act Section 404(f) from application procedures for discharges of dredged or fill material, and the state proposal's treatment of prior converted croplands.

Given the procedures' unclear and conflicting language, they would regulate prior converted croplands, which until now have been exempt from federal definitions of regulated water, and would require permits for any conversion of prior converted croplands to non-agricultural use unless permitted by the federal government.

The confusion caused by the state's proposed procedures became more obvious during a workshop with water board members last week. Representatives of all affected sectors, from industry to agriculture, from managed wetlands to environmental groups, expressed confusion with what the procedures would and would not regulate and when permits would be required.

Throughout the day, the state water board's chief deputy director, Jonathan Bishop, attempted to answer questions to provide further clarity. Regarding impacts to agriculture, Bishop stated repeatedly that it was not the intent of the state water board to regulate normal farming, ranching and silviculture activities that are exempt under the Clean Water Act.

Nevertheless, given the confusion expressed at the workshop and continued calls for the document to be rewritten to provide clarity, water board members directed staff to continue working with representatives of affected groups, including agriculture, to clarify confusion and potentially make necessary revisions.

So what happens next? Water board staff will hold an additional public workshop on Feb. 6 and update the board at its regular Feb. 19 meeting. A public hearing to consider adoption of the procedures may be scheduled on March 5. Based on comments made at last week's workshop, we expect to see more clarity regarding how the procedures would be applied to agricultural activities, and which agricultural activities would truly be excluded.

Farm Bureau will remain actively involved in this process, seeking to assure that state wetland rules can achieve their desired goals without placing undue burdens on the farmers, ranchers and foresters who care for California land and water.

(Kari Fisher is senior counsel for the California Farm Bureau Federation. She may be reached at kfisher@cfbf.com.)

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