The California State Water Resources Control Board is considering a proposed definition of “wetlands” that could significantly expand the state’s regulatory jurisdiction beyond the longstanding federal definition administered by the United States Army Corps of Engineers. State Wetland Policy Historically, the State and Regional Water Boards have relied primarily on the federal Clean Water Act program to protect wetlands. But in response to a series of Supreme Court decisions limiting the scope of federal wetland jurisdiction, the State Board has acted to regulate wetlands under state law in order to “fill the gap” created by receding federal jurisdiction. As part of this effort, the State Board directed its staff in April 2008 to develop a wetlands and riparian policy to strengthen the protections for wetlands and water quality. The first phase of this policy is directed at wetland impacts from dredge and fill activities and seeks to: (1) create a state wetland definition that “would reliably define the diverse array of California wetlands based on the United States Army Corps of Engineers’ wetland delineation methods to the extent feasible”; (2) develop a mechanism to regulate activities in wetlands, based on existing federal guidelines requiring the avoidance of wetland impacts to the extent practicable; and (3) identify wetland assessment methods to evaluate the efficacy of wetland regulatory programs. Later phases of the wetland policy will seek to expand wetland protections to reach “other activities” that do not involve dredging or filling a wetland and, ultimately, to reach activities occurring in riparian areas adjacent to wetlands. Proposed Wetland Definition To implement the first phase of its wetland policy, the State Board convened an independent Technical Advisory Team, which determined that the existing wetlands definitions — including the long-established Corps definition used by the State Board for decades — were not broad enough to capture all areas that provide wetland functions, such as certain un-vegetated areas like mudflats and tidal pools. On September 25, 2009, the State Board released for public review the team’s proposed definition which provides: An area is a wetland if, under normal circumstances, it (1) is saturated by ground water or inundated by shallow surface water for a duration sufficient to cause anaerobic conditions within the upper substrate; (2) exhibits hydric substrate conditions indicative of such hydrology; and (3) either lacks vegetation or the vegetation is dominated by hydrophytes. At first glance, this proposed definition appears to rely on the same three factors that the Corps has long used to distinguish wetlands from non-jurisdictional uplands: wetland hydrology, wetland soils and wetland vegetation. However, the proposed state definition differs from the Corps’ definition in a number of important ways: • Wetland Hydrology: Under the proposed definition, the presence of wetland hydrology would be presumed in most California environments whenever an area is wet for seven consecutive days. This contrasts with the Corps’ approach, which requires a showing that an area is, under normal circumstance, saturated for at least 14 consecutive days annually. As a result, application of the proposed state definition could greatly expand the amount of land in California that is deemed to have the requisite wetland hydrology. • Wetland Soils: The proposed state definition would replace the Corps’ requirement that an area have hydric soils with the new requirement that an area exhibit “hydric substrate conditions.” The meaning of this change is uncertain, however, since the term “hydric substrate” is not clearly defined. Read broadly, the definition could be interpreted as removing the requirement that wetlands have hydric soils. • Wetland Vegetation: Under the proposed definition, an area can be considered a wetland when it either has hydrophitic vegetation or lacks vegetation. This contrasts with the Corps’ definition, which requires the presence of wetland vegetation. This change is intended allow the state to classify mudflats and tidal pools as wetlands, but it may also have unintended consequences, by regulating areas such as cropped agricultural fields that provide no wetlands functions. The State Board has not yet set a date for when it will consider formal adoption of a new wetland definition, although it previously indicated its goal to adopt a such a definition in 2009. Potential Significance of Expanded Definition If the Board adopts the proposed definition, it would go far beyond merely filling the gap created by the Supreme Court decisions limiting federal wetland jurisdiction. Indeed, the new definition could cover areas never previously regulated as wetlands under federal or state law. Because the definition departs significantly from the Corps’ longstanding program, it also may require landowners and developers to conduct two separate wetland delineations for the same piece of land—one for the Corps using the traditional definition, and one for the state using an expanded definition. To date, neither the California State Board nor the Team has provided the scientific basis for the Team’s conclusion that its dramatic changes to the Corps’ definition are needed to protect wetlands. Accordingly, it is impossible to determine at this juncture whether these changes, and the increased regulatory burdens they could create, will in fact serve to enhance water quality or the environment.
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