California State Water Board Adopts Controversial Wetlands Rule
Culminating a process that began 11 years ago, the California State Water Resources Control Board last week unanimously adopted a revised policy to protect wetlands in the State. The policy creates a new definition of wetlands peculiar to California, gives a framework to determine a water of the state (nearly everything), and clarifies requirements for discharge of material to Waters of the State.
The legal pretext for the “new” policy was a series of court decisions narrowing federal jurisdiction over isolated waters that did not have a nexus to traditionally navigable waters. California labeled the court decisions as creating a “gap” in protection of surface waters, despite these same waters being addressed by the State’s 401 Certification process. This new policy is expansive, and will cover isolated waters and even mudflats as protected Waters of the State.
This new policy will serve as both the State’s 401 certification process when there is an U.S. Army Corps of Engineers 404 permit, as well as a stand-alone process for dredge and fill to Waters of the State that are not Waters of the U.S. The version adopted by the State Water Board is the 22nd clean version. Fortunately, the Board has also requested implementation guidance, and the new policy will not be effective until it has been reviewed and approved by the Office of Administrative Law and nine additional months have passed.
In short, the new policy will be effective in 12 months at the earliest, but more likely 15-18 months. This will provide time for projects to adjust to the State’s new dredge and fill requirements if their application is expected to come once the policy is effective.