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.
Conclusion
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.
[
All Environmental Law & Policy Alerts ] |
