California Adopts New Wetland Protections

04.30.2019

This month California’s State Water Resources Control Board (SWRCB) announced the adoption of new regulations defining California wetlands subject to state regulation. The regulations create a more expansive permitting scheme for developers, public agencies and others proposing to discharge to state waters.

The regulations result from a decade-long effort to increase protections for episodic bodies of water that provide ecological and economic benefits. Their timing, however, was prompted by the Trump Administration’s recent proposed roll back of federal jurisdiction over “waters of the United States” (WOTUS) under the federal Clean Water Act and supporting litigation seeking to invalidate the Obama Administration’s expansive 2015 WOTUS Rule. They are intended to ensure that California is largely insulated from any new latitude that Washington provides for watershed development.

California’s Porter–Cologne Water Quality Control Act (Water Code, Section 13000, et seq.) broadly defines “waters of the state” to cover “any surface or groundwater … within the boundaries of the state” and includes all “waters of the United States” under the federal Clean Water Act. The SWRCB notes in the new definition and procedures that “wetlands that meet the current definition, or any historic definition, of waters of the U.S. are waters of the state.” As a result, waters subject to state regulation will not change even if federal jurisdiction under the Clean Water Act is narrowed.

Further, the new regulations go beyond what the Clean Water Act presently requires under the 2015 WOTUS Rule by capturing a wide range of state wetlands, including “natural wetlands,” “wetlands created by modification of a surface water of the state,” and even certain artificially created wetlands. Significantly, the new regulations support jurisdiction even over wetlands found in arid regions of the state that do not normally support vegetation, like desert playas. The policy does, however, include a discretionary exclusion for routine and emergency operation and maintenance activities for public agencies, water utilities and special districts.

The SWRCB adopted the new wetlands definition during a public hearing on April 2, 2019. While it did not make any substantive changes from those proposed after its March 5 workshop, it did make minor revisions that could increase monitoring and reporting requirements by those receiving permits. The wetlands policy will now go to the Office of Administrative Law for a 9-month review period before it goes into effect. The policy contains a grandfathering provision that excludes project applications pending before the effective date.

The SWRCB has underscored that the new rules will provide much-needed clarity and predictability to the regulated public. Even so, the rules likely will result in greater instances of state “wetland” regulation, translating into greater permitting burdens and costs.