California's Proposed "dredge and Fill" Program for Wetlands and Other Waters of the State
| Publication year | 2017 |
| Author | by Clark Morrison |
by Clark Morrison*
The Trump Administration's rollback of wetland protections under the Clean Water Act is on a fast track. The President announced the rollback in his February 28 Presidential Executive Order on Restoring the Rule of Law, Federalism and Growth by Reviewing the "Waters of the United States Rule." The executive order signaled the Administration's intent, now under way, to repeal the Obama Administration's expansive assertion of federal jurisdiction over wetlands and other waters of the United States—as described in the Clean Water Rule: Definition of "Waters of the United States" (the "WOTUS Rule")1— with a very narrow WOTUS definition first articulated by Justice Scalia in Rapanos v. United States.2
The State of California, long concerned about a federal retreat from wetlands protection under Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers3 ("SWANCC"), had been working for years on a new regulatory program to fill the gap left by SWANCC (which excluded from federal jurisdiction certain isolated non-navigable bodies of water). Although the "SWANCC gap" is not particularly yawning, it provided an opportunity for the State—acting through the State Water Resources Control Board (the "State Board")—to step into wetland regulation in a primary role, rather than the subsidiary role it has historically played under Section 401 of the Clean Water Act. The Trump Administration's actions have invited a much broader role for the State, as the redefined concept of WOTUS under President Trump's executive order—if elevated to regulation—would leave vast areas of formerly-regulated wetlands entirely outside the ambit of the federal Clean Water Act.
The State Board has now amplified the scope of its wetlands rulemaking. Its revamped program, the proposed State Wetlands Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State (the "Dredge and Fill Procedures"), modifies the State Board's earlier Wetland Riparian Area Protection Policy, and is designed to apply to all discharges of dredge and fill material to waters of the state—not just wetlands. But the broad scope of the Dredge and Fill Procedures, which go beyond even the expansive Obama-era WOTUS Rule, sets the stage for potential conflict with existing federal regulations and for post-adoption challenges as the State and Regional Water Quality Control Board ("Regional Board") staff begin to implement the new program.
Historically, wetlands regulation in California was exercised primarily under Section 401 of the Clean Water Act, which requires state certification of any activity requiring a federal license or permit "which may result in any discharge into [] navigable waters," to confirm that the federal action does not violate state water quality standards.4 When it comes to wetlands in California, the state certification process has been implemented by the nine Regional Boards acting in response to certification applications submitted to the United States Army Corps of Engineers (the "Corps") for permits under Section 404 of the Clean Water Act.
The Regional Boards have exercised their authority on a case-by-case basis and with varying degrees of rigor. The San Francisco Bay Regional Water Quality Control Board has by most accounts been the most active, requiring applicants to complete the same types of rigorous alternatives analyses required of federal applicants under EPA's so-called "404(b)(1) Guidelines;" imposing mitigation requirements exceeding those imposed by the Corps; and importing requirements more properly addressed in the context of NPDES storm water control regulation. Not all of the Regional Boards have been this active, but many of them have begun to develop programs that operate fairly independently of the applicable federal regulatory requirements.
The Section 401 certification, however, is losing its influence. When the Supreme Court issued its decision in SWANCC, the State lost its regulatory hook on isolated non-navigable waters under Section 401 because there was no longer a need for federal permits to deposit dredged or fill material into such waters. Not wanting to abandon its protection of wetlands that had been "SWANCCd" at the federal level, the State began to assert its independent authority under the Porter-Cologne Water Quality Control Act.5 In guidance issued by the State Board Office of Chief Counsel shortly after SWANCC, "[g]iven the State [of California] and federal 'no net loss' of wetlands policy, the [Regional Water Boards] should consider regulating any discharges of waste to waters that may no longer be subject to [Corps] jurisdiction . . ."6 They have since done this through the issuance of waste discharge requirements for federally-disclaimed wetlands.
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Not content to allow the Regional Boards to regulate "gap" wetlands on a case by case basis, the...
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