State wetlands policy returns to original intent


Issue Date: April 10, 2019
By Christine Souza

More than a decade in the making, a new state definition of wetlands will likely take effect early next year—as will procedures intended to protect them from dredge-and-fill activities.

The State Water Resources Control Board adopted final amendments to the state wetland policy last week, after including changes that moved it closer to its original intent of limiting its application to agriculture.

The California Farm Bureau Federation and other agricultural groups had opposed earlier drafts of the State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State, because they would have unnecessarily harmed farmers' and ranchers' ability to manage their land responsibly.

CFBF Senior Counsel Kari Fisher said the water board had stated, early in the process, that it did not intend to regulate normal farming, silviculture and ranching activities that are exempt under the federal Clean Water Act. Before finalizing the document, board members directed staff to continue working with stakeholders, including agriculture, to clarify confusion and potentially make necessary revisions.

Fisher said that led to "countless meetings over the past two months" involving Farm Bureau and other agricultural groups with water board staff and members. As a result, she said, "the adopted procedures now more closely reflect staff's original intent to limit the procedures' application to agriculture."

Specifically, Fisher said, agricultural groups and water board staff were able to revise key provisions within the procedures in order to correctly incorporate and interpret agricultural exemptions and exclusions found in the federal act. She expressed appreciation for the work the board and its staff undertook to address many concerns the farm groups raised.

The newly adopted rules provide a statewide definition of what constitutes a wetland, which includes any land with hydric soils and hydrology, regardless of whether the land has wetland plants. The procedures also include a framework for determining if a wetland is a water of the state, plus wetland delineation procedures and an application for dredge or fill activities.

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

But prior to the revised proposal, Fisher said, the procedures did not properly reflect agricultural exemptions in the federal law and would have regulated land defined as "prior-converted cropland."

Under the new state wetlands policy, fields flooded for rice cultivation received certain exclusions, as did prior-converted croplands and routine, normal farming, ranching and silviculture activities as defined by the federal Clean Water Act.

"For rice fields, the water-quality beneficial-use designations do not apply to the water within the rice field," Fisher said. "However, the existing practice of regulating discharges of waste that come off the field or migrate to groundwater was maintained. The revision recognizes the unique growing conditions of rice and is a positive thing we support for our members."

Speaking to the water board last week, Tim Johnson, president and CEO of the California Rice Commission, commended the board and its staff for "taking the time to hear concerns from stakeholders on all sides."

"In February, we raised the question of unintended impacts on habitat provided by rice production with flooding. In March, I raised concerns about inadvertent outcomes that would occur as a consequence of several of those solutions being offered," Johnson said. "In both cases, the board and staff heard our concerns and worked diligently and in good faith to craft a solution that works for rice and works for water quality."

Fisher pointed out that the agricultural exclusions in the newly adopted state wetlands policy do not mean agriculture is not regulated.

"Agriculture is regulated under other programs," she said, "and portions of the procedures are already incorporated into other programs, such as existing irrigated-lands programs."

Before it adopted the wetlands policy, the board inserted language saying that its staff would provide annual progress reports about the policy's implementation, after consulting with stakeholders. The reports are to include economic impacts and unintended consequences to industry, such as agriculture.

California Association of Winegrape Growers director of government relations Michael Miiller said of the annual progress reports, "I think that is very important, as this board is looking at potential future changes in policy, on basic implementation and how the regional boards apply the regulations."

Prior to the effective date of the procedures, estimated to be early 2020, water board staff will develop implementation guidance for potential applicants.

Fisher said Farm Bureau and other agricultural groups will continue working with the board and staff as the new procedures take effect, to make sure farmers and ranchers retain the flexibility they need to do their work while protecting the environment.

The state wetlands rule was adopted as the Trump administration works to revise an Obama-era "waters of the United States" or WOTUS rule that farmers and ranchers say went too far.

The federal WOTUS rule, originally published in 2015, would have expanded the agencies' authority to regulate water and land, and came under strong criticism from farmers, ranchers and agricultural organizations. The deadline is April 15 to submit comments on the revised federal rule (see story).

Learn more about the new state wetland policy at www.waterboards.ca.gov/water_issues/programs/cwa401/wrapp.html.

(Christine Souza is an assistant editor of Ag Alert. She may be contacted at csouza@cfbf.com.)

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