On April 2, 2019, the State Water Resources Control Board (State Water Board) adopted new rules entitled "Procedures for Discharges of Dredged or Fill Material to Waters of the State" (the Procedures). The State Water Board cited the potential need to strengthen protections for "waters of the state" and the need to develop uniform definitions and procedures across California's Regional Water Quality Control Boards (Regional Boards) for regulating discharges of dredged or fill materials.

The Procedures establish a definition for "wetlands" that largely tracks the definition historically used by the U.S. Army Corps of Engineers (Army Corps). In addition, they establish a Regional Boards regulatory process for the submission, review and approval of applications for activities that could result in the discharge of dredged or fill material to "waters of the state." In total, however, the Procedures appear to do little more than formalize a Regional Boards permitting process that has been in effect to varying degrees since 2001, when the U.S. Supreme Court determined that the Army Corps does not have jurisdiction over "isolated waters." Nonetheless, there are some potentially important new twists in the Procedures. For example, with respect to required mitigation plans, it is now possible that the level of detail usually required only for larger fill projects may now also be required by Regional Board staff for the smaller and less impactful projects. Importantly, under the Procedures, the Regional Boards will now be obligated to apply the rigorous "alternatives analysis" procedure to certain projects that have historically been effectively exempt from that analysis when processed under one of several Army Corps nationwide permits (NWP).

Perhaps the most important ramification of the State Water Board's action in adopting the Procedures is to effectively freeze in place the existing regulatory process for the fill of waters in California, even if the Trump administration is ultimately successful in its current efforts to scale back the reach and processing requirements of the Army Corps' Section 404 regulatory program.

BACKGROUND

The state's effort to formally regulate the fill of wetlands and other waters has a long history. It began in earnest in 2001 with the memorandum issued by the State Water Board's Chief Counsel initiating informal practices to regulate "isolated wetlands" deemed to be outside of the Army Corps' jurisdiction by the U.S. Supreme Court's decision in SWANCC vs. Army Corps.[1] It continued with the State Water Board staff's preparation of a "workplan" in 2004 to fill those perceived gaps in wetland protection.[2] Then, in 2008, the State Water Board adopted a resolution declaring it would develop a wetlands and riparian policy.[3] That effort evolved over time and culminated in adoption of the Procedures just over a decade later.

The Procedures will take effect nine months after approval by the state's Office of Administrative Law (OAL). State Water Board staff have opined that the OAL will approve the Procedures within the next 60 to 90 days, which means the Procedures are likely to become effective near the end of the first quarter of 2020. Notably, though, the Procedures do not apply to applications that are submitted prior to the date the Procedures become effective.

THE NEW "WETLAND" DEFINITION AND PERMITTING PROCEDURES FOR FILLS OF WATERS OF THE STATE

The Procedures establish a definition of "wetland" that largely tracks the Army Corps' three-parameter definition; the text italicized below is the only difference. Under the Procedures, an area is a wetland if, under "normal circumstances" (a defined term):

• The area has continuous or recurrent saturation of the upper substrate caused by groundwater, or shallow surface water, or both;
• The duration of such saturation is sufficient to cause anaerobic conditions in the upper substrate; and
• The area’s vegetation is dominated by hydrophytes or the area lacks vegetation.

The Procedures adopt the standard three-parameter wetland delineation methodology that has been used by the Army Corps since 1987. Artificial wetlands are included in the Procedures' definition, although 12 types of aquatic features are specifically exempted from being regulated by the Procedures, including stormwater basins, groundwater recharge basins, flooded rice fields, and "prior-converted croplands" (an Army Corps term).

For certain projects that are not otherwise covered by general permits or are otherwise exempt, the Procedures also formally incorporate the standing Army Corps practice to require an "alternatives analysis" in search of the "least environmentally damaging practicable alternative" (LEDPA) and largely adopt the Army Corps' comprehensive mitigation plan requirements.

POTENTIAL CHANGES UNDER THE PROCEDURES

The Procedures' alternatives analysis and mitigation plan procedural requirements could theoretically dramatically increase the workload of the Regional Boards' staff, but the extent to which this workload materializes will likely depend upon whether the Trump administration is successful in narrowing the Section 404 program’s scope. If that program is scaled back, the number of projects subject solely to California's regulatory program will likely increase, generating considerably more work for the Regional Boards' staff. On the other hand, if the Section 404 federal permitting program remains unchanged, the new Procedures may only have an impact on a very small percentage of projects (estimated by State Water Board staff to be roughly one percent).

For the vast majority of projects, it appears that the Regional Boards will be able to comply with the new Procedures with continued reliance on the information generated by the existing Army Corps requirements for processing NWPs and individual permit applications. The Procedures are not applicable at all to projects authorized under a general permit issued by the State Water Board or a Regional Board.

For projects that do not fall within the Army Corps' permitting jurisdiction or are otherwise not subject to one of the state's general permits, the Procedures will effectively require many of those projects to be processed as if they were subject to an Army Corps individual permit, i.e., they will have to include preparation of an alternatives analysis leading to a LEDPA determination and preparation of a detailed mitigation plan. This may not be a significant difference from current procedures, given that, in recent years, the Regional Boards have informally engaged in this practice to varying degrees in those relatively few instances where a fill of an "isolated  water" is proposed. The Procedures now formalize this practice and make it consistent across all Regional Boards.

POTENTIALLY SIGNIFICANT NEW REQUIREMENT

One potentially significant change effected by the Procedures is their application to some projects that have historically qualified for certain Army Corps NWPs. Several often-used NWPs – utility lines (NWP 12), linear transportation projects (NWP 14), residential and commercial developments (NWPs 29 and 39), and recreational facilities (NWP 42) – apply to projects with fills of up to 0.5 acres (including wetland fills) or impacts to drainages that exceed 300 feet (if the Army Corps waives the 300-foot default cap). Under the Procedures, a full alternatives analysis leading to a LEDPA determination and detailed compensatory mitigation plan is now required for any project that would involve fill of more than 0.2 acres or more than 300 linear feet of a drainage. As to those projects, the Procedures effectively override the Army Corps' NWP program by requiring them to be processed as if they were an individual permit project, not a NWP project. This has the potential to significantly extend the permit processing time for these particular projects and change the standards by which to determine whether and on what conditions the requested permit will be issued.

ISSUES FOR FUTURE CONSIDERATION

The Procedures do not put to rest all open questions regarding the State's wetlands and waters regulatory program. The following open issues may still arise (or be litigated) in the course of pursuing permits for discharges to waters of the state:

• The Procedures do not cite a legal basis for the declaration that discharge of fill to waters of the state qualifies as a discharge of "waste" that is subject to regulation under the State's Porter-Cologne Water Quality Control Act (Porter-Cologne Act). In fact, no legal authority has clearly established that "fill" is "waste" as that term is used in the Porter-Cologne Act.

• Other California resource agencies such as the California Coastal Commission (CCC) must rely on different definitions of wetlands from those contained in the new Procedures. For projects in the coastal zone, the CCC must apply the wetland definition supplied by the Coastal Act (Pub. Resources Code, § 30121). Likewise, nothing prevents a CEQA lead agency from applying its own definition of a wetland as long as the definition has a basis in substantial evidence (e.g., reliance on the Cowardin definition of wetland[4] sometimes relied upon by the U.S. Fish and Wildlife Service). Of course, alignment of the wetland definition across all regulatory agencies is not within the State Water Board's regulatory purview and can only be effected with statutory change.

• The Procedures do not purport to define "waters of the state" other than wetlands, leaving practitioners with broader unanswered questions about other non-wetland waters. For example, the Procedures do not address the question of "when is a tributary not a water of the state anymore?" – an issue that comes up for practitioners more often than might be guessed.

As with any new regulatory program, a true understanding of the effect and reach of the Procedures will only come with application in the field. That will not begin until sometime in 2020.

_{[1] Solid Waste Association of Northern Cook Counties v. U.S. Corps of Engineers, 531 U.S. 159 (2001).}

_{[2] "Workplan: Filling the Gaps in Wetlands Protection", transmittal from Arthur G. Baggett, Jr. to Terry Tamminen, Agency Secretary, California Environmental Protection Agency, September 24, 2004.}

_{[3] "Development of a Policy to Protect Wetlands and Riparian Areas in Order to Restore and Maintain the Water Quality and Beneficial Uses of the Waters of the State", State Water Resources Control Board, Resolution No. 2008-0026 (April 15, 2008).}

_{[4] Cowardin, L. M., V. Carter, F. C. Golet, E.T. LaRoe, 1979, Classification of wetlands and deepwater habitats of the United States, U.S. Department of the Interior, Fish and Wildlife Service, Washington, D.C.}