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State Water Board Seeks Public Input in Preparing Environmental Impact Report for Wetlands Policy and Dredge and Fill Regulations
February 8, 2011

by Cassie N. Aw-yang

The State Water Resources Control Board (Board) is considering adoption of a proposed wetland area protection policy and regulations to govern the discharge of dredged and fill material into waters of the state (Policy).  In preparation for adoption of the Policy, the Board is developing an environmental impact report (EIR) under the California Environmental Quality Act (CEQA).  The EIR will be a program-level analysis, as undetermined future projects will be undertaken in accordance with the Policy.  The Board prepared and released an Initial Study of the proposed Policy’s potential environmental impacts.  The Board will accept written comments on the Initial Study and other environmental concerns related to the proposed Policy until noon on February 15, 2011.

The Proposed Wetland Area Protection Policy

The primary purpose for the proposed Policy is to protect all waters of the state, including wetland areas and waters covered by the Clean Water Act (CWA), from discharges of dredged or fill materials.  The state has traditionally relied on the CWA to govern such discharges and protect wetlands.  However, recent United States Supreme Court decisions have excluded many types of isolated wetlands (e.g., vernal pools, playas, potholes, and alpine wet meadows) from CWA protection by narrowing the definition of what constitutes a water of the United States.  As a result, the Board determined that the state’s wetlands are insufficiently protected.  The Board intends for the proposed Policy to fill the regulatory gaps by making the state program consistent with and complementary to the federal program.  As proposed, the Policy would not authorize specific construction, data collection or monitoring activities, but rather would provide a statewide framework for regulating these ongoing activities.

More specifically, the proposed Policy would:

•    Define “wetland” as an area that under normal circumstances is saturated by groundwater or inundated by shallow surface water so as to cause anaerobic conditions within the upper substrate, exhibits hydric substrate conditions indicative of such hydrology and lacks vegetation or is dominated by hydrophytes;

•    Prescribe methods to delineate what qualifies as a wetland based on United States Army Corps of Engineers (Corps) guidance;

•    Provide a framework for collecting and reporting aquatic resource information required by permits, waste discharge waiver conditions and discretionary financial assistance conditions; and

•    Establish permitting requirements applicable to discharges of dredged or fill material to waters of the state based on Corps guidelines, including the recent compensatory mitigation rule.

Further, the proposed Policy would provide that, in general, no permit could be issued for the discharge of dredged or fill material where there is a practicable alternative to the discharge that would have less of an adverse effect on water quality and no other significant adverse consequences.  In addition, the proposed Policy would prevent the issuance of a state-issued dredge and fill permit if the discharge would:

•    Cause or contribute to a violation of water quality objectives or any other water quality control plan provision;

•    Fail to comply fully with CEQA where it applies;

•    Jeopardize the continued existence of endangered, threatened or candidate species under the California or federal Endangered Species Acts or result in the likely destruction or adverse modification of critical habitat; or

•    Violate any requirement to safeguard a specially protected aquatic site (e.g., marine sanctuary, Area of Special Biological Significance).

The proposed Policy and its requirements would not apply to:

•    Wetlands converted from a non-agricultural use to cropland before December 23, 1985;

•    Artificial wetlands in an area where a wetland did not exist before and which is engineered for specific services (e.g., wastewater treatment, surface water drainage or agricultural water supply); or

•    Non-prohibited discharges of dredged or fill material identified in federal Clean Water Act section 404(f)(1) (e.g., discharges from normal farming, silvicultural and ranching activities) and that comply with all applicable CWA section 404(f)(1) guidance.

Although the activities in these categories would be excluded from the need for a separate dredge and fill permit as set forth in the proposed Policy, such activities may still be regulated by regional water quality control boards under other types of waste discharge requirements or waivers from waste discharge requirements.


Now is the time for interested parties to inform the Board of any environmental impacts it should consider in the EIR being prepared for the proposed Policy.  If adopted, the proposed Policy may have lasting statewide implications by creating a new regulatory program for a myriad of activities that may result in the discharge of dredge or fill material to waters of the state.

For additional information related to the proposed Policy or CEQA compliance please contact Cassie Aw-yang at cawyang@somachlaw.com.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.

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