On April 2, 2019, the California State Water Resources Control Board (Water Board) approved new Procedures for Discharges of Dredged or Fill Material to Waters of the State (Procedures). The new wetland Procedures address potential gaps in federal regulatory coverage for certain wetlands and waters of the state due to potential federal changes that would limit the Clean Water Act’s reach, particularly in California and the Arid West.
Why are these changes to the Procedures significant?
Key changes to the State wetland Procedures may impact your project’s regulatory permitting process, as well as project costs and timelines. Additionally, for projects seeking 401 water quality certifications (401 certification) and/or waste discharge requirements (WDR), you must consider whether submitting applications before or after the Procedures take effect would be most advantageous.
What’s changed in the wetland Procedures?
The new wetland Procedures contain seven key changes on topics including:
- “Wetland” definition;
- Exemption for certain artificial wetlands;
- Separate state approach for conducting wetland delineations;
- State requirement for an alternatives analysis for projects above a specific threshold;
- Minimum baseline mitigation ratio of 1:1;
- Requirement for a public meeting prior to the Water Board entering into written agreements (e.g. memoranda of understanding) with another state agency; and
- Procedures for the submittal, review, and approval of applications for 401 Certification and WDR for dredge or fill activities.
How have the Procedures changed the definition of “wetlands?”
The federal Clean Water Act defines wetlands as:
“Those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.”
The new Procedures define “wetlands” similarly to this current federal definition, with two important distinctions.
- Regulated wetlands can exist in non-vegetated areas if other criteria are met; and
- Areas are considered wetlands if they meet current or historic federal definitions.
Artificial wetlands will continue to be regulated, unless they have any of the following characteristics:
- Smaller than one acre;
- Created by a diversion of water from a different water of the state;
- Not specifically identified as wetlands or other waters in a water quality control plan; and
- Not a relatively permanent part of the natural landscape.
Evaluating historic conditions and applying exemptions will likely require additional evaluation and coordination with Water Board staff that could result in delayed permit processing, so early planning and consultation is important.
What role does an alternatives analysis play in application approval pursuant to the Procedures?
The new Procedures include a list of items required for a complete permit application. This explicit list should aid in receiving a completeness determination from Water Board staff sooner in the permit process and in starting the Permit Streamlining Act clock. The most critical item in the list is the alternatives analysis, which is required to determine the least environmentally damaging project alternative (LEDPA).
The new Procedures require an alternatives analysis for nearly all WDR and 401 certification applications, even if an alternatives analysis is not required by the Corps––except in a few cases. Exceptions include:
- A minimum impact threshold below which no alternatives analysis would be required (i.e. more than 0.2 acres or 300 linear feet of waters of the state, if sensitive resources are absent; or
- Discharges to waters of the state outside of federal jurisdiction, but that still meet the terms and conditions of one or more Water Board-certified Corps’ General Permits (including any Corps District’s regional terms and conditions).
The alternatives analysis requirement is fairly substantial, but considering it early in the process should streamline your application planning and preparation.
How much mitigation is required by the wetland Procedures?
The Procedures refer to the Corps’ mitigation ratio-setting checklist and provide a list of factors that would be considered in developing the ratio, which include:
- Function of the impacted wetlands vs. function of the mitigation wetlands;
- Temporal loss; and
Temporary impacts that are fully restored to pre-project conditions do not have a minimum mitigation ratio threshold. For all other impacts, a minimum 1:1 acreage or linear feet ratio is required. From that baseline, the ratio can also increase, Dudek Senior Biologist Vipul Joshi said. “The Procedures’ ratio is not as generous as the Corps’, which can go below 1:1 if the mitigation site is in place and high functioning, compared to a degraded impact site.”
The Procedures also incorporate a watershed approach. In theory, if mitigation conforms to a watershed approach and approved watershed plan, mitigation ratios are reduced. The Procedures allow existing regional plans to be approved as watershed plans, but it isn’t clear who will propose these plans, what State resources will be dedicated to reviewing the plans, or what the final requirements of such plans will be.
When will the new Procedures affect my project?
While a precise implementation date is yet to be set, the new Procedures will likely be applied to any project applications submitted after January 2020. You may be able to submit your application ahead of the January 2020 effective date, which could be advantageous, especially if doing so would allow your project to avoid an alternatives analysis. However, if your application “lacks basic completeness” according to the Water Board, early submission to avoid regulation under the new Procedures can be rejected.
If you intend to submit your application after January 2020, carefully plan early in the process and schedule a pre-application meeting with Regional Water Board staff to verify all project assumptions regarding the new Procedures are correct. Early consultation gives you the best chance of submitting a complete application sooner, streamlining the permit approval process as much as possible.
What’s the overall assessment of the wetland Procedures?
“The new Procedures aren’t a game-changer, but the regulation solidifies the Water Board’s place as the most stringent of the three wetland regulatory agencies,” Joshi said. “There was a lost opportunity for the Procedures to have provided true permit streamlining by aligning state and federal regulations and review, enabling one decision-maker when possible. That said, the new Procedures provide more certainty for applicants, even if that means a more complex regulatory permitting process with potentially distinct state and federal delineations, proposed mitigation, and permit application requirements.”
What’s the status of implementation?
On December 17, 2020, the Sacramento County Superior Court issued a ruling that the State Board exceeded its policy-making authority by applying the Procedures broadly to all waters of the state. In its ruling the Court indicated that the State Board can only apply the Procedures to waters of the United States as defined by the Clean Water Act. In instances where there are projects with non-federal waters of the state, the Procedures would not apply.
On February 8, 2021, the State Board issued a public notice for the adoption of a proposed resolution on confirmation that the Procedures are in effect, and will remain in effect, as state policy for water quality control. The comment period is open through March 8, 2021, with a public hearing scheduled for April 6, 2021.
For more information, contact Vipul Joshi.