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State Water Board Devising New Definition, Policy for Protecting Wetlands

The definition of wetland would seem to be self-evident: wet land. If only it were that easy in California. 

From vernal pools that slowly diminish in the Central Valley heat to brackish estuaries separating ocean from land, California's topography includes some of the most varied types of wetlands imaginable. Their numbers and varieties baffle that which governmental regulations such as the federal Clean Water Act describe. 

A new proposed policy, released in preliminary draft form by the Water Resource Control Board, seeks to preserve the state's remaining wetlands and tighten controls over how permits to impact wetlands are issued. 

The product of seven years of discussions and scientific study, the Preliminary Draft Wetland Area Protection Policy—based, in part, on the federal definition—is being hailed by environmentalists but already raising anxiety among developers. It defines wetlands according to the following criteria: 

is continuously or recurrently inundated with shallow water or saturated within the upper substrate; 

has anaerobic conditions within the upper substrate caused by such hydrology; and 

either lacks vegetation or the vegetation is dominated by hydrophytes.

These criteria were recommended by the Water Board's Technical Advisory Team, which consisted of a team of 15 scientists with expertise in various aspects of wetland ecology and geology. 

Only 9% of the state's wetlands remain as compared to the days of Spanish settlement. For much of the 20th century, the policies of the state and of the Army Corps of Engineers was to fill wetlands in order to make lands arable and developable. This policy seeks to reverse that trend while preserving the diversity of the state's wetlands.

In order to account for unusual wetlands that occur in California's arid climate, the definition includes the following caveat: "Places lacking vegetation but otherwise meeting the hydrology and substrate criteria for wetlands are defined as wetlands…(to include) tidal flats, playas, some river bars, and shallow non-vegetated ponds."

That accounts for some of the more arid regions of the state and some of the wetland types that typically don't have vegetation," said Eric Stein, Biology Department Head at the Southern California Coastal Water Research Project and member of the Technical Advisory Team. 

The draft policy also includes a wetland delineation method, a wetland assessment and monitoring framework, and authorization procedures for dredge and fill discharges to waters of the state

The draft has been released "for information purposes" and will not be subject to public comment for several more weeks. Water Board officials expect that it will undergo revision before the board votes on a final draft. 

Though rhetoric cannot capture every variation and account for every potentially valuable natural resource, scientists say that this definition will serve the desired purpose, especially compared to status quo. Thus far, the state has not adhered to an official definition. Different agencies, from the Coastal Commission to the Department of Fish and Game, have often relied on their own notions of what constitutes a wetland. 

As a result, say state officials, the process for protecting wetlands—or, conversely, for issuing permits to dredge, fill, and discharge—has been haphazard at best. 

"It's difficult to manage a resource without knowing exactly what it is and being able to identify exactly what it is," said Bill Oreme, chief of the Water Board's Wetlands and 401 Unit. 

The Water Board ordered the drafting of the new policy with three goals in mind: 1) establish clear, uniform criteria for the application, review, and approval of permits to discharge dredged or fill material to waters of the state; 2) to achieve no net loss of wetlands; 3) provide a common framework for the monitoring and assessment of wetland areas. 

All of these goals hinge on the definition of what a wetland is, but some say that the new definition does not go far enough to achieve them.

"We think it's far too narrow," said Colin Kelly, state attorney at Orange County Coastkeeper.  "If you look at other sections of California state regulations, there aren't as many qualifiers on what a wetland is." Kelly said that those qualifiers could end up excluding important resources. 

Until recently, the Clean Water Act was interpreted to cover a wide variety of wetlands, but no longer. 

The federal government's definition has prevailed over waters covered by the Clean Water Act. But even that has been a moving target, thanks to a pair of recent Supreme Court decisions—Solid Waste Agency v. U.S. Army Corps of 2001 and Rapanos v. U.S. of 2006—that ruled that the act applied only to tributaries of navigable waterways. This ruling effectively reduced the amount of waters that fall under the protection of the Clean Water Act and forced the state to enact its own policy to protect important waters that are now excluded from the CWA. 

State officials could not merely adopt federal standards, and apply them to all potential waterways in the state, because of the variety and relative preciousness of the state's wetlands. Biologists contend that wetlands often serve as crucial habitats for all manner of species, particularly migratory birds. Thus, even an ephemeral vernal pool could provide safe harbor in an otherwise arid landscape. Meanwhile, coastal wetlands are considered valuable for flood control, water filtration, and recreation. 

Though officials stress that the policy and definition remain in draft form, developers are anxious about changes that could arise if and when a final version is adopted. 

"Our principle concern is the potential duplication of federal, state, local regulations," said Mike Winn, president and CEO of the Building Industry Association of California. "It's already a very complicated process and this doesn't seem to be simplifying matters at all. 

It contradicts and makes what for decades now has been a painful but at least somewhat predictable process less predictable."

The board also hoped to bring its definition of wetlands in line with that of the Clean Water Act; however, some say that there are enough discrepancies – such as the occasional exclusion of the vegetation criterion – that permit applicants may end up doing more work. 

"We have a really serious concern with the process of having to go through two wetland permitting processes, not just one," said Winn.

"It looks to me like it may be just enough different to make it confusing…and perhaps burdensome," said Elizabeth Lake, partner at the law firm of Holland & Knight.  

Despite the trepidation that many developers feel any time the state changes a policy, state officials insist that the new policy might actually ease the burden on developers who apply for permits. Officials say that the new definition will neither increase nor decrease the amount of resources that lie under the state's protection, and they have pledged to make the permitting process more streamlined. 

Thus, developers will not necessarily find more lands off-limits, and even if applications are to be denied, they will be denied more quickly than they are under the current system. 

"There's going to be no difference between what we presently have jurisdiction over and the condition after the policy," said Oreme. 

"What you're going to see is that areas that are regulated today are probably very similar to areas that are regulated under this policy," said Stein. 

Oreme said that currently each of the state's nine Regional Water Boards follow their own criteria, meaning that any developer who works in more than one region faces different policies. 

"I think developers should find a lot of advantages to this policy," said Oreme. "This policy will establish a set of criteria that will be uniform across all water boards." 

Although the Supreme Court took many wetlands out of federal jurisdiction under Section 404 of the Clean Water Act, many wetlands areas remain federally protected. The Water Board has made efforts to ensure that its new definition matches up with that used by the Army Corps of Engineers. In cases when the jurisdictions overlap and a developer must submit applications to both a regional water board and to the Corps. 

The Corps has therefore been involved with the drafting of the new policy and has pledged its commitment to facilitate an efficient permitting process.  

"We will continue to work with the State on its proposed policy to reduce duplication, streamline reviews and make decisions about protecting wetlands that are consistent and reasonable, and plan to submit further comments once the Draft Policy is open to formal public review," said Michael Jewel, regulatory chief for the U.S. Army Corps of Engineers Sacramento District.

Despite the state's mandate to incur no net losses, both the Corps' and the Water Board's statements of purpose indicate that they are committed to "reasonable economic development." 

Contacts & Resources: 

State Water Resources Control Board Clean Water Act Section 401 Program

Colin Kelly, Staff Attorney, Orange County Coastkeeper, 714.850.1965

Elizabeth Lake, Partner, Holland & Knight, 415.743.6969

Bill Oreme, Chief, Wetlands & 401 Unit, State Water Resources Control Board, 916.341.525

Eric Stein, Biology Department Head, Southern California Coastal Water Research Project, 714.755.3233

Mike Winn, President & CEO, Building Industry Association of California, 916.443.7933