Proposed definition of wetlands and procedures would greatly expand state permitting program, potentially affect recharge basins and constructed facilities, water agencies say
“Listen carefully, be amazed, and be frightened,” said Jill Duerig, retiring General Manager of Zone 7 Water Agency at the beginning of a panel discussion at the recent fall ACWA conference on the subject of the proposed state wetlands regulations.
“The current proposal for new dredge or fill procedures from the State Water Resources Control Board can potentially impact almost all of the water utilities in this state,” she said. “It will certainly have huge impacts on everybody doing regional flood protection.”
The State Water Board’s proposal consists of four major elements:
1) a wetland definition;
2) a framework for determining if a feature that meets the wetland delineation is a water of the state;
3) wetland delineation procedures; and
4) procedures for application submittal, and the review and approval of Water Quality Certifications and Waste Discharge Requirements for dredged or fill activities.
The State Water Board’s webpage cites several important issues that the procedures have been developed to address, including the need to strengthen protection of waters of the state that are no longer protected under the Clean Water Act due to U.S. Supreme Court decisions; to address the inconsistency across the regional water boards in requirements as there is no single accepted definition of wetlands at the state level; and that the current regulations have not been adequate to prevent losses in the quantity and quality of the state’s wetlands.
“Dredge and fill material is really just a word that we borrowed from the federal Clean Water Act that really just means soil, sediment, dirt, or any kinds of discharges of that type of material,” she explained.
The draft procedures were most recently issued in July of 2017 for public comment. State Water Board staff held workshops in August, and held a public hearing in September where concerns were raised about the proposed regulations. Written comments were due on September 18th with responses to comments tentatively set to be published this month (December 2017) and adoption planned for spring of 2018; Ms. Coffee said that it’s looking more like winter of 2018 before any responses to comments and a new draft of the procedures will be available, although there hasn’t been an official announcement of that yet.
The proposed procedures would put into place a permitting program that mandates the issuance of permits for the discharges of soil into waters of the state.
“It’s just like a new state 404 permit,” she said. “Now for many discharges to waters of the US, which is a whole different jurisdictional term, we have to get permits under section 404 of the Clean Water Act from the Army Corps of Engineers. This creates a very similar, almost exactly but similar, program to do the same kind of permitting under state law for waters of the state in California.”
The proposed permitting program requires that the water board issue WDRs for any activities that might release soil into these jurisdictional waters of the state; this program will duplicate and also expand upon the Army Corps of Engineers 404 program, as well as the Cal Department of Fish and Wildlife 1602 agreement program, she said.
Typical activities that can release dredge and fill material into the waters of the state are generally construction or operational maintenance activities for water conveyance and storage facilities. As defined currently in the proposal, Ms. Coffee said it includes discharges of any size, even very small discharges of soil such as incidental fallback as defined under the Clean Water Act; it also includes very minor alterations to the bed, bank, dam, substrate, and associated habitat areas for these types of facilities.
Ms. Coffee presented a list of typical activities undertaken by water agencies to construct or maintain their facilities, pointing out that all of these kinds of activities are likely to result in at least an incidental if not a more serious discharge of soil, and would need one of these new permits, but only to the extent that there could be a discharge of soils to waters of the state.
Waters of the state as defined under the statute in the Porter Cologne Act are defined quite broadly as any surface water or groundwater including saline waters that are within state boundaries. In the contexts of other permits, anything could result in a discharge to groundwater, for example, is also sometimes required to get a permit.
“Because a discharge to land can be a discharge to a waters of the state, that gives you a sense how broadly waters of the state is defined in the statute in the past,” she said.
“This regulation doesn’t change the statutory definition of what might be jurisdictional,” she continued. “But as a practical matter, it does mandate a whole new permitting program that all the regional boards have to implement even for the smallest and most incidental discharge or soil into any waters of the state, and that’s where we get a little difference of opinion in terms of its impact. Even though it doesn’t change statutory jurisdiction, one of the major concerns is that it’s a massive permitting program that doesn’t exist today which would place a staffing burden on the regional boards.”
The statutory definition of waters of the state is known, but currently, there isn’t a program that requires discharge permits to waters of the state; instead, the state has relied on information submitted for the waters of the US to the Army Corps of Engineers. Ms. Coffee noted that the state has sometimes issued WDRs in cases affecting typically special aquatic sites or some kind of environmental sensitive waters of the state that might not otherwise be protected by federal jurisdiction.
She explained that when the program was first conceived back in 2001, it was in response to the Supreme Court cases known as SWANCC, Rapanos, and Carabel. Those US Supreme Court cases eliminated certain types of aquatic features that had been regulated by the Corps and the 404 permits from federal Corps jurisdiction.
“When that happened, the State Water Board issued a memorandum and later some general permits and such to say that even though these special isolated wetlands and isolated waters of the US could not be regulated as water of the US under the federal Clean Water Act, they did qualify as waters of the state, and the state would regulate those,” she said. “So in those cases where something would escape a 401 certification, the state has already asserted its right to regulate those and decided way back in 2001 to go ahead and issue regulations for a permitting program that would formalize that.”
That was how the permitting program was originally envisioned, but somewhere between 2009 and 2011, the scope of the new state law for the permitting program became very different and much broader, and now the permitting program is not designed so much to protect these kinds of isolated features, she said.
Everybody can appreciate that headwater streams or vernal pools are waters of the state, but now the program protects much more than that, she said, presenting a diagram to illustrate how waters of the state is much broader than waters of the US.
“Wetlands are a subset of all kinds of waters of the state,” she said. “There are wetland waters, but there’s also all kinds of other waters – channels and drainages are a perfect example of those. There’s a bed and a bank and channel course, and sometimes those are wetlands. Many times, and particularly in a Mediterranean desert climate, it’s not a wetland; it may just be a sand wash. Still, it’s a water of the state, but it’s not a wetland.”
“Originally, they were going to regulate only those wetlands that were not waters of the US but were actually only waters of the state, but now they are regulating all waters of the state under this program, so it’s much broader,” she continued. “It includes both wetland and non-wetland waters, and it is fully duplicative of the waters of the US, so everything that needs a 404 will now need a state permit – plus things that don’t get a 404 will need that permit.”
She then presented a depiction of the wetland waters of the state. The proposed regulations would expand the definition of wetland waters from the usual definition.
The Clean Water Act in the Arid West Regional Supplement instructs how to delineate wetlands in the Western US; simply put, what the manual says is if it has wetland hydrology for a certain number of days, hydric soils for a certain number of days, and vegetation that’s associated with hydric soils and wetland conditions, then it’s a wetland, Ms. Coffee said, noting that it only has to have that for a period of time due to the arid nature of our climate which is growing more arid as climate change progresses.
“What these regulations do is change that definition,” she said. “It no longer requires hydrology and soils and vegetation; it now requires hydrology or soils but not both, and it can be vegetated or non-vegetated. So there are really only two tests: does it have either soils or hydrology, or vegetation or no-vegetation. Because of that, it’s a much broader definition of wetland than what used under the Clean Water Act. It’s also creating a great deal of confusion among consultants with respect to how to delineate those things, and should this go forward, there will have to be a whole new delineation manual that is promulgated.”
Ms. Coffee said that from what she could draw from the workshops, it is actually intended to encompass some special aquatic sites that don’t have vegetation, such as salt flats. “But as the proposal is defined, it’s actually much broader than that and one of the things we’ve suggested is that perhaps it’d be better to just to name those special aquatic sites, rather than change the definition of wetlands,” she said.
The scope of waters of the state is broad enough to include all kinds of artificial or constructed wetlands, and these can be canals that have riparian vegetation associated with them, percolation ponds, constructed treatment wetlands, and other things that agencies have been encouraged over the years due to their multi-benefit nature, she said.
“Not only can they move water or infiltrate water or treat water, but they can also provide habitat and other natural functions,” she said. “Almost all of those under this regulation will require 404 permits to do any construction or operation or maintenance of those facilities. Although there’s an exception for artificial wetlands, the exception is very narrow as applied.”
This is easiest seen on page 63 of the staff report, which has a chart which lists every test that much be passed in order to get an exemption from the new permit. Ms. Coffee said she spent time with State Water Board staff with several examples on behalf of water agencies who are her clients, and they could not find any constructed facility that could be exempted under the chart.
“That’s because if it’s a modified water of the state, you have to get a permit,” she said. “If it is noted or designated in a basin plan, which many folks like to designate are treatment wetlands in the basin plan, you have to get a permit. If it was created as mitigation, stormwater treatment or otherwise, you have to get a permit. If it’s historically not typically permitted as most everything is, get a permit. And it’s not about waters of the state, it’s at any point in history, so almost all of our facilities are located where other waters of the state were because that’s where water runs and flows, and so really almost no exemptions for any of the artificial wetlands.”
“It also applies to non wetland waters of the state which is a very broad designation, broader than that used by CDFW or by waters of the US,” she continued. “It would apply to partially improved or improved canals, channels, ditches, reservoirs, ponds, storm drain channels, riffles, and erosion gullies.”
The proposed new waters of the state and the permit for activities that release soil into them would create several new requirements that all of the water agencies are going to have to go through in order to do any O&M or construct facilities, she said. There will have to be a new delineation procedure developed because the definition would be different than the Corp or CDFW for what are wetlands and non-wetland waters.
Ms. Coffee said she went through the wetland jurisdictional framework and noted that artificial wetlands will have to be delineated and while there is a definition in the regulations of wetland waters, there’s no definition for non-wetland waters, such as channels. She also noted that there’s no cross-reference that allows applicants to rely on federal delineation methods to determine the extent things like bed, bank, and ordinary high water mark.
“Instead at this time, the proposed regulation just says you need to go ask the regional board if it is a water of the state if you have any thought that it might not be, so no guidance on those but they are definitely regulated and a permit is required,” she said.
One of the most draconian of the new requirements is that a new 404(B)(1) alternatives analysis would be required; this is an in-depth analysis of all kinds of alternatives to the project, including a no-project alternative and alternatives that would be in other locations.
“This alternatives analysis under federal law doesn’t extend to every project, but under state law, it would extend to even the smallest discharges impacting very small waters of the US and really regardless of whether the project is water dependent or not,” she said. “With respect to artificial wetlands, those maintenance projects always have to occur in the facility, so there’s really not going to be a way to get out of the 404(B)(1) analysis.”
The 404(B)(1) analysis will be required even for discharges where water agencies have been using Corps nationwide permits; usually under a Corps nationwide permit an alternative analysis is not required, but a state law alternatives analysis would be required for those discharges, she said. There is an exemption for projects that would only have temporary impacts, but only if all restoration and revegetation associated with that project can be completed within 1 year; if it takes more than one year to do the project and restoration, an alternatives analysis would still be required, she said.
There are also new supplemental mitigation requirements proposed, including new watershed profiles to be included in the application to put mitigation in context as well as different prioritization of watershed mitigation. “One of the bigger concerns is that because we have a broader definition of wetland and the mitigation ratios for wetland mitigation are higher than for non wetland waters, there will be more mitigation required under this proposal,” she said. “Also, I’m a little concerned about the difference of state law prioritization of in-watershed onsite, which is not the case in federal law, which encourages banks and reduced mitigation only if a watershed management plan is in place, but it’s not clear that the current stormwater management plan might count as this type of watershed management plan. It’s also not clear if HCPs and NCCPs might count.”
“So given the typical mission of most member agencies of ACWA to provide high quality water at the lowest practical cost in an environmentally responsible manner, the biggest concerns that the water agencies have about this particular proposal would be the costs and delay in permitting with really a limited incremental benefit, because many of these permits are the kind where we’re already getting Corps permits and CDFW permits and of course we also have Endangered Species Act rules that protect these resources as well,” she said.
ACWA has submitted comments along with the coalition. Ms. Coffee noted that there are many groups concerned, including stormwater, municipal agencies, water quality, as well as ag, forestry, and other natural resource-based industries.
The primary recommendations made are:
Keep the wetlands definition in the delineation procedures identical to those under the Corps current 404 program and the Western Arid Supplement;
Harmonize the permitting exclusions with those that exist under federal law;
Provide streamlined permitting and alternatives analysis exclusions for non-water dependent projects and projects that qualify for the Corps Nationwide permits.
Identify non-wetland waters of the state consistent with other guidance for delineation of those kinds of water, and if there’s a desire to go further and regulate other types of waters that aren’t encompassed within the non-wetland and wetland water definitions, then we encourage the regional boards to call those out specifically as special aquatic sites.
Conform the state mitigation priorities with the Corps mitigation rules so that what qualifies for mitigation under the federal law will also qualify under state law.
Exempt multi-benefit constructed facilities from waters of the state or exempt them from the permit application requirements.
The last recommendation to exempt multibenefit contructed facilities is recommended “because there are so many State Water Board policies and rules that recommend the use of these multi-benefit constructed facilities, and adopting a permitting program of this nature really undermines the incentives and directives under the California Water Action Plan, under the STORMS program, under the California Stormwater Management Program from DWR,” Ms. Coffee said. “All of these programs really tell you to build these kinds of multi-benefit constructed facilities for the natural treatment they provide, and now all of those facilities would be subjected to a new permit, so the recommendation is to exempt those.”
Next steps will be further meetings with the water board staff, with a new draft of the regulations probably due in the spring to early summer of next year, Ms. Coffee concluded.
DANIEL COZAD: Urban concerns with the proposed procedures
Daniel Cozad, General Manager of the San Bernardino Water Conservation District then gave the perspective from an urban agency. The Water Conservation District is at the top of the watershed, and their sole job is to recharge the Bunker Hill groundwater basin; this year, they will sink about 50,000 acre-feet into the ground. He said they have very little wetlands because they are located on an alluvial fan and that means all the water goes into the ground.
The district was started in the early 1900s by local citizens who figured out that if they let all the water go to the ocean in the winter, there wasn’t enough water in the summer, so they gathered up enough money to build a diversion on the Santa Ana River, he said. That diversion is still working today.
Besides the facilities on the Santa Ana River, they have facilities on Mill Creek. It’s a very flashy, steep creek; there are about 48 basins there. Water is diverted mostly in the winter months, and can run through April or May for native water. In some years, there may be State Water Project water available for recharge.
The slide on the upper right is their diversion. “On one side of that wall is federal waters jurisdiction; on the other side of the wall is not federal waters jurisdiction,” he said. “Is it state waters jurisdiction? Probably. Is it always wet? No. Is it questionable, can you figure out how exactly it’s supposed to go? No, not really. But that’s what the diversion looks like and we maintain the diversion, the facilities, and the water goes underneath the flood wall and into all those basins.”
The District takes very high quality runoff from the mountains which is very low in TDS and they put it in the ground. “So when I asked Mary Lynn, ‘what kind of permit do have to get?’ And she said, ‘you would have to get a waste discharge permit to put that high quality water into the ground to improve the quality of the water in the ground. Which you sort of scratch your head about you would explain that to the public and to your board members.”
He noted that they did raise the issue with the State Board, and from their response, he surmised that it wasn’t exactly what they were intending.
The spreading basins provide high quality habitat and most of the time, the water sinks in rather quickly. There’s a very low cost to his constituents for these recharge activities because most of their facilities have been paid off for a really long time.
“So a cost like this, if we were to permit or to mitigate, we’d have to go downstream a long ways to find wetlands to mitigate for the wetlands we would take, and we create wetland areas that wouldn’t be there otherwise, so either way, it would be a huge loss of wetlands,” he said.
When they divert water into the sand basins, they divert a bit of the sediment that would otherwise go into the stream, so less sediment is a benefit to those downstream, he noted. Quite a bit of sand and silt comes into those basins, so they must be maintained at least once a year. They take the sand and recycle it, sell some of it, and put some back.
“It’s pretty nice white sand, and if you’re from the area and you’ve ever heard of Mentone Beach, this is Mentone Beach,” Mr. Cozad said. “It’s not really a beach, and if you live in Mentone, it’s as close as you get, and it’s got water in it, and it’s cool, and there’s often water in the summer and this nice sand that’s as close to beach as you get that far inland.”
He noted that the trees in the upper left picture have federally-protected bird species in the summer, so they have great sensitivity to when the maintenance can occur. “All of those basins require some management over time – to take silt out, to recontour them; all of those things would require a kind of unknown permit,” he said. “On the other side, is the federal jurisdiction … Is it waters of the US? Is it not waters of the US? Is it an artificial wetlands, is it not going to be an artificial wetlands? We hope that the exemption that we’ve asked for will get through for these kinds of facilities and the artificial treatment wetlands that other entities have.”
Mr. Cozad recommended managers look at what’s been proposed to determine if they would be affected by it.
“We put 1 MAF of water in the ground fairly cheaply and effectively, we think that’s what the State Board wants us to be doing and what they want more people to be doing, so we need to figure out how to give these types of facilities the ability to do that without Hope having to come and spend a lot of her time fixing a problem that isn’t really a problem,” he said.
Mr. Cozad pointed out that they still have to get permits for habitat and species, so they are covered for those things. “When you think about mitigation, and you mitigate for the habitat loss, because we’re critical habitat for several species, and then on top of that, you’ve got California critical habitat for species, and then on top of that, you have wetlands and waters, and now you have this. If you add all those mitigations up, there may not be enough land to mitigate all of those things if they don’t happen to overlap, so if all of that doesn’t make you a bit nervous, I’m not sure why.”
PHIL WILLIAMS, Central Valley agriculture concerns
Phil Williams, general counsel with Westlands, then gave the Central Valley agricultural perspective. He recalled how he had recently sat on a panel talking about the Clean Water Act in San Francisco and he was asked, ‘what’s at stake here’.
“Part of what’s at stake here is institutional structures,” he said. “It’s not as simple as is it a wetland or is it not, and do you fill out a form or not, but we are talking about pretty dynamic and pretty complex institutional paradigms.”
Farmers labor in the medium of soil and water, and he likened regulating the farmers in this way is much like regulating a painter who applies paint to canvas. “That simply is the medium in which they operate,” he said. “These people are stewards of that land, and there are no greater stewards of the land then those who coax life out of it – for sustenance for the rest of us.”
There was quite a bit of work done in the 1970s and 1980s to ensure and recognize the reality of the fact that this nation is built on a certain way of feeding itself. “We encouraged farmers to grow food in the most efficient way possible, and that has simply allowed our society to get to the point where we are,” he said. “It is a very real foundational reality. So when you go back to the statute in 1975 that initially exempted normal farming activities, and you go through the legislative history there, you get a sense of the importance of that discussion and the recognition that the legislators at the federal level and the appreciation they had of the recognition that farming plays. When you start regulating that activity, there are very real consequences. It doesn’t mean it shouldn’t be regulated at all carte blanche, but it does mean that it needs to be done responsibly.”
In the 80s, the EPA and the Army Corps passed some regulations that specifically said that plowing will never involve a discharge of the kind of material we’re talking about, which betrays the same kind of robust appreciation for the reality for agriculture in the United States. He noted that the recent case involving Mr. John Duarte where he had relied heavily on the exemption, and the District Court didn’t buy it. “That case is interesting,” he said. “From my point, it’s worrying. I’m worried about the strength of that exemption and relying on that exemption, and how that may affect the state law.”
Mr. Williams pointed out that under the proposal, landowners and water agencies will be faced with two universes: a waters of the US and a waters of the state. You may have a federal wetland with a certain set of rules and now potentially a state wetland with a different set of rules. “What’s at stake is not only significant amount of permitting requirements and making sure that you’re following through with those, but also the complexity of complying with those analysis and recognizing our responsibility as public stewards to ensure that we actually are complying,” he said.
The proposal would require a significant set of what could be described as subjective analyses, such as impacts to other beneficial uses, he said. “The State Board is also promulgating and expanding the definition of beneficial uses, so the question becomes for water managers and landowners, which beneficial uses? Concerns like the public trust may start to weigh in, am I balancing appropriately, which beneficial use trumps another beneficial use, how confident can I be as a landowner or water agency that I’m going to be found to have chosen correctly. All kinds of ancillary and tertiary considerations are quickly coming into play, when what you may be told is simply, ‘this is just a new regulatory regime’ but it’s far more complex than that.”
Mr. Williams then turned to the Endangered Species Act. He noted that in the last couple of years, there was promulgation of a new rule on critical habitat and modification thereof. “The way that I read that rule, it’s pretty expansive and doesn’t leave a lot of room in terms of certainty in terms of the landowner or water manager or land manager in understanding whether the land they own now may be designated as critical habitat because it may be necessary for species ten years from now or under a different set of circumstances,” he said.
With regards to endangered species, you may be interested in participating in a habitat conservation plan. “What requirements might be imposed on a landowner or water user for those, and how will those intersect? We have a finite resource of land, so at what point can you get double credit for mitigation under these disparate regimes?”
In the Central Valley, preserving wetlands is a concern and a legitimate one, Mr. Williams acknowledged. He noted that under the Migratory Bird Treaty Act, there is no incidental take or habitat conservation plan that gets you out of that. “So what do you do there when you’re talking about migratory birds that are landing now on state-delineated wetlands that are federally protected? A series of perhaps known and unknown unknowns,” he said.
Mr. Williams recalled how he recently read a book titled, Engineering Eden which discusses managing for grizzly bears in a national park. “It does a phenomenal job of proposing what I think is the question of that book which is, how do you responsibly manage for natural processes – grizzly bear populations or in our case, wetlands – in a fundamentally altered system?” he said. “The altered system in the book was the National Parks system where you have roads and cabins and 45 foot RVs driving through. In our world, we’ve converted a lot of what was previously wetlands to ag land and/or homes for people, and roads, and businesses … I think we need to be careful and be constantly asking ourselves, how do we responsible for those natural processes in these fundamentally altered systems?”
“That’s the task of leadership, that’s the task of people in this room – it’s our job to crack that nut,” Mr. Williams said. “But we need to be carefully of not saying that Ceasar shouldn’t ever cross the Rubicon … We are where we are. The task before us is to do the best we can.”
In closing, Mr. Williams stated that he disagrees with the wetlands procedures and regulations, just for the record. “I think there are better ways to go about doing it, but there may come a time where this is the world that we’re looking at,” he said. “If I take off my general counsel hat and I put on my citizen hat, when my local agency comes to me and says, ‘it’s the state’s fault,’ I don’t care; I don’t what to hear about whose fault it is. I want my government to work, and I don’t care if its local government or state government, I expect leaders at all levels to interact effectively and efficiently to advance solutions that work.”
If or when the rules pass, we’re going to have to master those rules, Mr. Williams said. “We’re going to have to make them work, because the residents and the people we serve just don’t want to hear Phil Williams get up and say, it’s too hard, it’s the State Board’s fault. I don’t to be saying that. So I think we have some significant challenges in front of us, I do believe we’re up to it.”
HOPE SMYTHE, Regional water board perspective
Hope Smythe, Executive Officer of the Santa Ana Regional Water Quality Control Board, then wrapped up the discussion with a regional board staff perspective on the draft procedures.
She began by emphasizing that what the State Board has presented to the public and at their workshop and hearing is still in draft form; staff is evaluating all the comments that they have received. “In my experience, State Board staff really evaluate comments received and really see where appropriate changes can be made,” she assured. “A draft procedure is not set in stone; there is time for the State Board members themselves to consider what they want to do and to hear and read the comments from the public, and the State Board members do that very well. They take those comments and input into consideration as they make their decision.”
Ms. Smythe said that she’s been with the regional board since 1989, and oversaw the 401 Water Quality Certification Program in the late 1990s. “Over the years, I think the State Board and the regional boards have realized that regulation and protection of wetlands is an important function that we need to undertake, and so that’s why the State Board has been working on some kind of wetlands policy since 2001,” she said. “All the regional boards have been addressing and handling 401 water quality certifications differently and so the State Board felt that it was necessary to have a consistent approach to protecting wetlands statewide, to develop a consistent definition for wetlands that all the regional boards use and can use, and to have a consistent approach to the regulation of wetlands in our permitting activities.”
She noted that they have heard from various applicants and dischargers that regional boards do things totally differently because there is no consistent approach. There is an important reason for having statewide procedures in place, she said.
Ms. Smythe acknowledged that the new wetlands definition, delineation requirements, alternative analysis requirements, and the mitigation plans are a lot of work and different in some respects than what they do now.
“We do rely on a lot of the work and materials submitted with the federal waters of the US application process,” she said. “Having this kind of documentation and procedures put in place for waters of the state will add a burden to our workload, regional board staff workload, definitely the applicants workload, the dischargers workload will increase as well, again if the policy and procedures are adopted as proposed.”
Ms. Smythe said they’ve been working with the State Board staff to assess how the workload may change as they have very limited resources to do these kinds of permitting activities, and so the proposal could significantly impact their workload.
“It’s something that we are definitely concerned about and we’re working with State Board staff to evaluate the resourcing needs,” she said.
She said in-house, they’ve been discussing the possibility of issuing general permits. She also noted She also noted that they already do issue WDRs to waters of the state for some dredge and fill activities already; it’s unknown how much that workload would increase.