WOTS Up? An Update Regarding Regulation of Waters of the State and Waters of the United States
Attorney Mary Lynn Coffee unpacks the new wetland regulations and Waters of the State rule, plus a look at the 2019 Waters of the US rule
On April 2, 2019, the State Water Board adopted new regulations requiring Water Boards to issue permits for discharges of dredged and fill material (meaning soil, sediment, or dirt) to Waters of the State (WOTS). Although sometimes portrayed in the media as a response to the Trump Administration’s rollback of provisions in the federal Clean Water Act, the process to adopt the new regulations actually began about 15 years ago. The newly-adopted regulations create a new statewide wetland definition that expands to features not previously covered under federal law and creates a new permitting program for activities that result in the discharge of dredge or fill materials to any Waters of the State.
The new policies are intended to conform with the State’s ‘no net loss’ policy for wetlands and to address the gap in federal regulation created by recent U.S. Supreme Court decisions. However, as water agencies look to meet future state goals of recharging groundwater, diversifying water supply portfolios, and ensuring protections of health and safety, many are concerned that a rigorous state permitting program could have unintended consequences.
At the recent Nossaman Land Use Seminar, attorney and partner Mary Lynn Coffee gave an overview of the new regulations.
THE REGULATIONS ESTABLISH A NEW PERMITTING PROGRAM
Ms. Coffee began by noting that they are considered water quality regulations because the rules are adopted under the federal Clean Water Act and the state Porter-Cologne Water Quality Control Act. These are often related to construction activities, because in order to construct something, it’s necessary to grade the land and fill depressions, and whether those depressions constitute waters or not under the legal definition will determine whether a permit is needed.
“This is a very significant statewide new regulatory permitting program and a lot of folks didn’t realize it was being adopted,” Ms. Coffee said.
It’s called a state wetlands permitting program but the term ‘wetlands’ is really a misnomer because these new regulations apply to both wetland and non-wetland waters, she explained. The program will govern discharges of dredge or fill material; fill material is usually dirt, but it can also be also anything that falls into the water, even small or incidental kinds of discharges of sediment that might occur, for example, when you’re pulling vegetation out of a flood control channel.
The new program is a state equivalent of a Clean Water Act section 404 permit, which is issued under federal law by the Army Corps of Engineers with oversight by EPA. It’s the same kind of permit, but now it’s for Waters of the State, instead of Waters of the US, she said.
The new permitting program requires the regional water boards to issue Waste Discharge Requirements or WDRs (permits) for activities which release dredge and fill material to the jurisdictional waters of the state.
“These new regulations require issuance of a WDR instead of a 401 certification, so it’s a 401 certification issued as a WDR,” Ms. Coffee explained. “All 404 permits have to be certified by State Water Boards. These regulations now govern those 404 certifications and require them to be issued as a WDR. It will also overlap but it expands upon our California Department Fish and Wildlife 1602 agreements which are the streambed alteration agreements.”
There are two parameters that apply: Is it a governed discharge? If so, is it to a Waters of the State? If so, then a new permit called Waste Discharge Requirements or WDRs will be required.
The first parameter is that it applies to typical activities that could release dredge or fill material to Waters of the State. This would include not only dredging but essentially placement of fill for any kind of constructed improvement. Small discharges of sediment, such as discharges associated with vegetation and debris removal are also covered, as well as alterations in bed, bank, dam, substrate, and associated aquatic, wetland and riparian habitat. Also covered is filling any feature to construct any structural improvement, such as crossings; bridges; culverts; transit; transportation or structural improvements, and constructing, modifying, operating or maintaining flood control channels, culverts, drains, and basins or water conveyance or irrigation canals.
The new regulations also apply to constructing, modifying, operating or maintaining percolation ponds or wetlands, water storage ponds, reservoirs, detention or retention basins, and treatment wetlands, extended detention basins, and wet basins.
The second parameter is Waters of the State, which is very broadly defined under Porter Cologne as ‘Any surface water or groundwater, including saline waters within state boundaries’; it includes both natural and artificial or constructed facilities, Ms. Coffee said. “The regulation doesn’t change the statute, but mandates a permit for discharges of soil to any Water of the State, both wetland and non-wetland waters, so if you have a discharge of sediment to any Water of the State, then you will need one of these permits in order to have any discharge of fill, whether that’s incidental or intentional.”
FILLING THE SWANCC GAP
When the regulation was first proposed, it was to fill a gap in the federal regulations in the federal 404 regulations known as the ‘SWANCC” gap; SWANCC is a reference to a Supreme Court case that basically said that isolated wetlands that aren’t used in interstate commerce would not be Waters of the US regulated by the Army Corps of Engineers.
“When that happened, there were great concerns in California about vernal pools,” Ms. Coffee said. “That was way back in 2001, and so the effort began to really regulate vernal pools and isolated waters that were essentially disclaimed from jurisdiction due to the SWANCC case. But since 2001, the definition of what would be regulated by this program has grown tremendously.”
WHAT IS A WATER OF THE STATE?
Ms. Coffee presented a diagram depicting the Waters of the State and Waters of the United States, noting that the state’s new permitting program covers both wetland and non-wetland waters. The large circle represents Waters of the State; any discharges to any Water of the State will be governed. The Waters of the United States are defined in a particular manner under the federal Clean Water Act, which is smaller by definition than Waters of the State and so is represented by the smaller circle.
Originally, the state was considering regulating a subset of those waters that fell within the SWANCC gap, which included all the kinds of wetlands that were determined by the Supreme Court to no longer constitute Waters of the US, which included vernal pools and treatment wetlands, if they weren’t artificial and constructed.
“Now what we’re seeing regulated is actually all Waters of the State, whether those are wetlands or non-wetland waters,” Ms. Coffee said. “Wetlands include artificial and natural wetlands, everything in the SWANCC gap, treatment wetlands, vernal pools, all wetlands and includes all Waters of the State. It also includes non-wetland waters, things like natural or constructed channels, flood control channels, ditches, gullies,and rills. Some regional boards say historic flood plains, 100 year and 500 year floodplains constitute a non-wetland water. There are varying definitions throughout the state of what constitutes a non-wetland water. Constructed impoundments, meaning reservoirs for water supply or detention basins or debris basins can be considered non-wetland waters.”
This rule is much broader than originally proposed because this rule applies to all waters in the state, which by statutory definition is really broad: ‘All surface waters and all groundwaters of the state’, she said.
The difference between the federal definition of wetland water and the state definition is that the state adopted a modified three-parameter test. “The jurisdictional test is that there needs to be recurrent saturation, there has to be periods of inundation, but they didn’t define how long; and there has to be soil saturation, hydric soils, anaerobic conditions in the soil. We match there with the federal definition, but with respect to hydrophytic vegetation, that’s no longer required for it to be a definition under the state rule; however hydrophytic vegetation is still required for it to be a water of the US.”
The elimination of vegetation was intended by the state board to make sure that all kinds of special aquatic sites would be governed; special aquatic sites are governed as a separate category under federal law. “The question is, is there anything that’s now a wetland that’s not a special aquatic site?” said Ms. Coffee. “A special aquatic site would be a mudflat or alkali playa like around the Salton Sea or the back basin of Lake Elsinore. We know it includes certain beach areas, but what we’re not too sure about is, are there other types of features that would constitute an unvegetated wetland? I think that varies depending on where you are within the state.”
The new test for Waters of the State is much broader, encompassing more than the Waters of the US wetlands; it’s also a bit broader than the Department of Fish and Wildlife’s definition of wetlands under the streambed alteration code, said Ms. Coffee. “It definitely encompasses isolated wetlands meaning vernal pools, which CDFW streambed alteration agreement theoretically didn’t reach. It definitely includes isolated waters as opposed to wetlands that are associated with the bed or bank of a stream or lake. So there is definitely broader jurisdiction there.”
“Essentially what it says is if it is an artificial wetland is a Water of the US or if it was created as compensation or was ever a modified water of the state, then it is jurisdictional,” she explained. “It’s the ‘was ever a modified Water of the State’ that is very difficult because most wetlands have to be constructed where water flows; typically that was within a drainage channel, definitely was within a floodplain, so the precondition to get an exemption for a constructed wetland is that it cannot have been a Water of the State and that can’t be met. So in estimation of most, artificial wetlands are definitely Waters of the State and are regulated.”
Non-wetland waters are included in the new regulations, but not defined; that was considered beyond the scope of this phase of regulatory activity. Instead, Ms. Coffee said that you are instructed to go ask the regional board if you have non-wetland waters.
How non-wetland waters are to be delineated remains a big question. The staff report for the regulations indicates that applicants should reference the Corps jurisdictional manual and the Western Arid Supplement in order to define those, but there are other places where it is clear that it is intended that these non-wetland waters should be broader than what’s in the Corps manual so more guidance as to how non-wetland waters will be delineated is needed.
“They definitely can be constructed or unimproved or partially improved so canals with soft bottoms, flood control channels, ditches, levees, berms – all of those things are encompassed within non-wetland waters,” Ms. Coffee said.
“But because we don’t know how to delineate them, the area that’s jurisdictional is difficult to define. Corps jurisdictional non-wetland waters are typically the ordinary high water mark, some adjacent wetlands and sometimes some adjacent habitat. CDFW typically takes the ordinary high water mark plus any adjacent wetlands and habitat. Where the regional board takes is supposed to be a little bit more encompassing but it’s not clear where and that’s what we’re going to have to be working on in terms of implementation guidance to try to better define that.”
This will apply to all 401 certifications unless the regional board confirms there aren’t any Waters of the State involved, then the activity or area is excluded from these regulations only. “That doesn’t mean you get out of a 401 cert, it just means you don’t have to comply with the new requirements of these regulations when you get it,” Ms. Coffee said. “If the discharge complies with a general order, which is like a general permit, or if you can get a general order that applies, then you can comply with the general order instead of complying with these procedures.”
There are some exclusions, Ms. Coffee noted. The water agency community worked with a group of NGOs led by Kim Delfino and the Defenders of Wildlife to negotiate an exclusion to allow permitting of health and safety activities to occur without complying with the new requirements. This exclusion applies to existing facilities only, as long as they are currently being used and maintained for the purposes of flood control, stormwater conveyance, sediment/debris collection, recharge, surface/stormwater treatment, or recycled water purposes.
“This is how we were able to moderate some of the impact of the regulation,” she said. “It does allow us to maintain line and grade of flood control stormwater conveyance facilities, flood control including debris basins, and allows some work on recharge and surface and stormwater treatment and recycled water types of facilities, but only if they are currently existing and they are used and maintained. So a key here is to inventory what you have and make sure you are documenting it as an existing facility that is used and maintained for these purposes. It does not apply to dams or reservoirs.”
The regulations will become effective nine months after approval by the Office of Administrative Law. The nine months was added because regional board staff will need to be trained.
“If you’re application is received before the effective date, these new procedures don’t apply,” Ms. Coffee said. “If it is not, and if no exclusion applies, then you have to obtain WDRs or get your 401 certification under the new regulation.”
NEW REGULATIONS REQUIRE 404(b)(1) ALTERNATIVE ANALYSIS
These new regulations are much more stringent than the previous Water Board regulations and the Corps requirements. The new regulations require a 404(b)(1) alternatives analysis; a 404(b)(1) is defined in the Clean Water Act as an analysis to ensure the least environmentally damaging practicable alternative is chosen before a permit is approved. A 404(b)(1) analysis now applies to every WDR or 401 certification issued under these regulations, Ms. Coffee said.
The State Water Board did try to moderate that a bit by creating tiered 401 certifications. “They’ve tried to create tiers of alternative analysis so they could better right-size that analysis, but it’s required for all issuance of WDRs, unless operating under a nationwide 404 permit that’s already been certified by the State Board,” she said.
A tier 1 401 certification is a typical 404(b)(1) analysis that considers onsite and offsite alternatives, which may not make sense if, for example, the activity is a flood control channel that needs maintenance; tier 2 looks only as on-site alternatives and tier 3 looks only at avoidance and minimization measures.
“You can also avoid a 404(b)(1) as long as you have no discharge outside of the Waters of the US and you are using an uncertified nationwide permit, but that is limited to impacts that are less than .2 acres and less than 300 lineal feet, and cannot be used if any wetland or special status species or habitat would be affected by the discharge, so there is very limited ability to avoid the 404(b)(1),” she said. “There are some other things where you can avoid it, but those are not necessarily going to apply to most projects.”
There are new mitigation requirements under the regulation, most important a mitigation floor of 1:1 by area or lineal feet, which applies even if the proposed mitigation would create a functional lift in the restoration.
“So if you were going to propose an impact to an unvegetated ditch and you were going to replace that with a beautiful wetland, under the current Corps regulations, you would say that wouldn’t have to be 1:1 because you’ll get a lot better function out of the wetland than you got out of the unvegetated ditch,” said Ms. Coffee. “But here, you have a mitigation floor either in terms of linear feet of the ditch or in terms of acreage of the ditch. The distinction is important because many times you can’t get enough land to replace linear feet of stream or ditch-like features, and that minimum means you need the same area of ditch or linear feet of ditch has to be replicated in wetlands. But the wetlands are a lot more expensive to create, so it does create a difficulty in getting enough mitigation.”
The mitigation requirements apply to mitigation banks, she noted. “If they are going to be used to mitigate development, it becomes very difficult because who pays for the restoration lift, so there will be a follow-up effort to try to make these regulations work better for mitigation banking.”
There are higher mitigation requirements for wetland impacts and more features are considered wetlands. A watershed profile encompassing all lands within the watershed (even if privately owned) is required before the mitigation plan can be reviewed.
WATERSHED MANAGEMENT PLANS
Watershed management plans are encouraged, and if the plan contains a sufficient alternatives analysis and has been reviewed under CEQA, then the 404(b)(1) analysis can be avoided, and better compensatory migration requirements may be obtained, although not below the 1:1 area or linear foot mitigation floor.
“What constitutes a watershed management plan is fairly unclear,” she said. “The regional boards have to approve it as such. Certain NCCPs and HCPs will constitute that type of plan, and you’ll want to investigate those because it will help mitigate the otherwise more stringent permitting requirements.”
NEXT STEPS FOR WATERS OF THE STATE
Ms. Coffee advised those who are doing ongoing maintenance of infrastructure to inventory their facilities, their activities, develop an exclusion package and work with their regional boards to establish that exclusion. “This is one of those exclusions, as hard as we worked on it, it’s a ‘use it or lose it’ and in my view, if we don’t take advantage of it, it will go away.”
The State Board will be developing implementation guidance, and stakeholder involvement will be important as delineation procedures and mitigation rules are developed, Ms. Coffee said. “Continued stakeholder involvement will be critical because the water resiliency executive order mandates multi-benefit projects that provide things like habitat and naturalized facilities but also accomplish water supply purposes and those are exactly the types of projects that are caught up in this.”
What is happening on the state front makes whatever is happening on the federal front pale in comparison because the regulation game is now all at the state level, Ms. Coffee said. “I’m going to give you a brief update on what’s happening with the federal Clean Water Act, but everything is regulated under the state level now, so in some ways, whatever may be happening to rollback federal regulations isn’t going to matter in California.”
To start off, there were a lot of challenges to the 2015 Obama rule defining the Waters of the US which are still pending. Then the Trump Administration announced in 2018 that they would delay the Obama rule and then revise and replace it; however, the courts struck down that effort. So the states that have litigation pending are operating under the pre-2015 rule to define waters of the US; California and the other states shown in blue are operating under the Obama 2015 rule to define Waters of the US. In general, the 2015 Obama rule more broadly defines Waters of the US then the pre-2015 rule did, Ms. Coffee noted.
The next step is for the Trump Administration to revise the 2015 rule. The Trump Administration made the new rule available on December 11 of 2018, but didn’t formally propose the rule until it was published in the federal register on February 14 of 2019. The public comment closed on April 15, and there are over 600,000 comments. Ms. Coffee noted that the Trump Administration specifically rejected the idea of keeping the public comment period open past April 15 so any comments received post-April 15 won’t be considered or responded to.
The new 2019 rule narrows the definition of Waters of the US, focusing on traditional navigable waters and whether or not there is a surface water connection between a particular feature and that traditional navigable water. “If you have a surface connection, it’s a Water of the US; if you don’t, it’s not,” said Ms. Coffee. “That’s the briefest explanation.”
The Trump Administration’s 2019 rule specifically eliminates the idea of significant nexus, so the rule that if there is a significant chemical, biological, or physical connection between a particular water and a traditional navigable water, it will be jurisdictional is eliminated as per the February 2017 Presidential Executive Order titled, Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule, she said.
Ms. Coffee then presented a series of slides to compare the jurisdiction under the 2015 rule and the 2019 rule, noting that the most important difference is that if it is a traditionally navigable water or if there is a surface water connection that is at least intermittent or perennial, it will remain jurisdictional; if it’s not, then it’s eliminated essentially from jurisdiction by the 2019 rule.
Adjacent wetlands are defined differently; whereas adjacent wetlands were defined quite broadly under the 2015 rule, under the 2019 rule, the wetland must actually abut a traditionally navigable water or other jurisdictional feature in order to be considered an adjacent wetland. “They have to have a hydrological surface connection; a groundwater connection between a wetland and an adjacent feature isn’t enough anymore under this definition,” she said.
Isolated waters were defined pretty broadly to be included, but in the 2019 rule, they are not even defined as a separate category and unless they otherwise qualify, they won’t be jurisdictional, Ms. Coffee said. If ditches are ephemeral, artificial and don’t replace something that was a traditionally navigable water, they will generally not be jurisdictional.
The 2019 rule also retains all prior exemptions. Some amendments might be useful but there are also some amendments might perhaps unintentionally narrow the exemption so they need a little more work. There is a major expansion of exemptions—all waters and features not expressly listed in the regulation are non-jurisdictional, and the rule eliminates burden to prove non-jurisdictional nature of certain waters.
“Essentially the primary thing to look at here is whether they are, actually in the commentary not in the rule itself, limiting the stormwater control and the wastewater recycling and waste treatment pond exemptions more than they should be, more than the law prior to 2015 would require,” she said.
What’s next for the WOTUS rule? Lawsuits are likely to ensue, and since there is still litigation pending that was filed in 2015, it will likely be several years before there is a finalized Waters of the US rule, so many states will remain under the 2015 rule for quite some time as a practical matter, she said. If the 2019 rule becomes effective, new technical guidance will be needed because there are a lot of things that aren’t explained, such as how to delineate intermittent, permanent, and ephemeral waters, and what exclusions apply.
POTENTIAL IMPLICATIONS OF THE NARROWING OF THE WOTUS RULE
Ms. Coffee has some cautions about the potential implications of narrowing the WOTUS rule could be, starting with incidental take statements for endangered species. “The primary way that we get endangered species clearances or incidental take statements (which essentially are permits) is in Section 7, which has to be supported by a federal nexus or a federal permit issuance,” she said. “We’ve had multiple conversations and negotiations over the extent of the area of potential effect of a 404 permit, because a 404 permit is our typical way of triggering a nexus and allowing for a Section 7 incidental take statement. We actually were given some informal guidance on expanding the area of potential effects sufficiently to cover upland species when doing a 404 permit as the primary nexus because Section 10a has become very cumbersome. Individual HCPs are very cumbersome – you rarely see a 10a permit issued these days and you never see a NCCP permit issued anymore under CESA, so the narrowing of this nexus is really going to create tremendous difficulties for getting endangered species coverage.”
The narrowing the Waters of the US has tremendous implications for permits such as NPDES discharge permits for stormwater and wastewater under Section 402, as well as for the setting of water quality objectives and TMDLs. “If we take ephemeral streams on other kinds of streams and tributaries out of jurisdiction, TMDLs by definition can’t consider waste loads that come from those, and those won’t have permits in which to implement waste load allocations, so fixing water quality problems will be a whole different ballgame if we narrow this definition substantially,” she said.
Finally, Ms. Coffee said that in light of the state regulation, is there still a role for the federal 404 permitting program? “Under Porter-Cologne, the state could assume the federal 404 permitting program just as it has assumed the 401 NPDES permitting program, and if Waters of the US are so narrow now that we don’t have the ability to trigger a Section 7 and the state has essentially already assumed the 404 permitting program, the question that will probably be raised as a policy matter, is does it make sense to continue getting both or is this really a state assumption of the permitting program,” she said. “That plays into the lawsuit that’s been filed against the Waters of the State regulation. They have not assumed it yet and that lawsuit does assert that unless they assume the 404 permitting program, they don’t have authority to do the permits as broadly as they’ve done them to, absent that assumption, so we’ll see how that plays out. That argument will certainly have a tremendous impact on whether state moves forward with assumption from the federal government of the permitting program.”
PANEL DISCUSSION ON THE NEW WATERS OF THE STATE REGULATIONS
At the Association of California Water Agencies Spring Conference held in Monterey, a panel discussed the new regulations and the implications for existing facilities as well as new recycled water, stormwater management, and other water infrastructure projects.
Seated on the panel:
- Sean Maguire, Board Member on the State Water Resources Control Board: Sean Maguire was appointed in 2018 by then-Governor Jerry Brown. He is a registered civil engineer with both public and private service; much of his work has revolved around integrated water management and developing long term water supply solutions to meet the needs of both water users and the environment.
- Kim Delfino, California Director for Defenders of Wildlife: Kim Delfino has expertise in land use planning, endangered species conservation, water law, and wetlands protection. She served on the California Water Commission from 2000 to 2015.
- Daniel Cozad, General Manager at the San Bernardino Water Conservation District and Executive Director of the San Bernardino Valley Conservation Trust. He is also Executive Director of the Central Valley Salinity Coalition. He has worked for public and private clients and has background in facilitation and regional policy, working with governments and businesses to achieve regional goals.
- Mary Lynn Coffee, attorney and partner at Nossaman LLP. Mary Lynn has extensive experience providing strategic legal and regulatory advice and counsel with CEQA, NEPA, and state and federal water quality, wetlands, endangered species, and other resource protection laws.
The panel was moderated by Jeremy Jungreis, attorney and partner at Rutan and Tucker and Chair of ACWA’s Clean Water Subcommittee.
GOALS AND IMPACTS OF THE PROCEDURES
Jeremy Jungreis began the discussion with a question on the goal and impact of the procedures. “There’s been much discussion about the expansion of wetland regulation via the newly passed procedures. What were the goals in developing this new state regulation and were the procedures necessary for beneficial uses?”
Sean Maguire said yes, the procedures are necessary to protect beneficial uses. It is the Board’s responsibility under Porter Cologne to protect beneficial uses of water, which is what the Board is trying to accomplish with the wetland policy. He noted that the Board has been trying to address the gap in protections for over 15 years now, so these procedures will take a meaningful step forward to address that issue in the future.
“The Board has been implementing these types of permits for a number of years in different regional boards across the state, but we haven’t had a level of consistency in how wetlands and waters of the state have been regulated statewide, so what these procedures will do is allow us to do that,” said Mr. Maguire. “We are really striving for efficient and understandable permitting process so that everyone is on a level playing field and understands what the requirements are from the Board and how to move through the process in clear and transparent way.”
Kim Delfino recalled how when the SWANCC decision was first handed down, a bill was pending in the state legislature to have the State Board step in and start regulating, and Secretary of Cal EPA at the time stepped in and said the Board has existing authority to do this, they understood the importance of protecting its unique wetlands, and so they would be moving forward with a policy. “Fast forward 15 years and we finally get the policy in place, so this has been a long time in coming,” she said.
The reason for why the conservation community is focused on the wetlands issue is because massive amounts of wetlands have been lost – 95% of the historical wetlands lost along the coastal area and 90% in the Central Valley. “There has been a lot of effort from my organization and other organizations like Ducks Unlimited and California Waterfowl to do more wetlands restoration and creation, but the complexity and the different kinds of wetlands that are out there in riparian areas continues to slide,” Ms. Delfino said. “The Board’s own staff documents show that despite the enactment of the Clean Water Act and more emphasis on protection through the Coastal Act and through DFW’s jurisdiction, California still to this day is losing wetlands.”
Even with the state policy enacted under Governor Wilson in 1990 of no net-loss of wetlands, the state is still losing wetlands, Ms. Delfino noted. “We felt it was absolutely critical that the Board step in and exercise its jurisdiction under Porter Cologne and set up a consistent framework. Some of the regional boards were stepping up, but it was not consistent across all of the regional boards, so it was important to have a consistent policy, a consistent definition, and a consistent set of regulations put in place for being able to protect across the whole state of California.”
Moderator Jerry Jungreis asks Daniel Cozad about the expansion of the regulations. “You have a small district that does water conservation work, so with the new procedures, do you see regulatory expansion that affects your agency to a greater extent than before the procedures, and if so, is it positive, is it negative?”
“I think its beneficial and somewhat burdensome,” said Mr. Cozad. “I am much in favor not just stopping the loss of wetlands but expanding them. As a manager of a water conservation district, my job is to get water into the ground, so we’re in the middle of streams, ponds, and rivers all the time. So our staff, it’s incredibly important that they understand how those work and not lose those wetland qualities in the process. So all that, I’m 100% in favor of.”
“However, permitting, I’m never all that happy about,” Mr. Cozad continued. “Not because we don’t like the permitting process, but it costs a lot of money to do and it takes a long time. So if I could wave my magic wand and let all the good projects through with no impediments and all the bad projects stop at the door, all the staff at the State Board and the regional boards would be super happy. The problem is that it’s incredibly difficult to write regulations to allow the stuff you want to get through for all its good public purposes and not allow things that, in this case destroy, wetlands. It’s difficult to write those well and I think the group came to some really good compromises as to being able to maximize groundwater recharge as one of those exemptions. The exceptions to all of those will be in the implementation guidance, so it will be important to get to the permit writer how they actually write those, and we’ve now handed the job of letting good projects through and hopefully we’ve given them good guidance and policy to do that.”
We have the new policy which has a fair amount of ambiguity and uncertainty in it; the procedures apply to all Waters of the State, and what Waters of the State is has changed, said Moderator Jeremy Jungreis. The implementation guidance is going to be developed over the next six months to the year. “How are we going to put some details on what can be expected as far as costs, timeframes, and risk – all the things Board members and management at the water agencies have to think about?”
Sean Maguire noted that he is not a lawyer but an engineer. “Where I do have experience is in implementing regulatory programs, so something that was very important for me with the wetland dredge and fill procedures is that we did direct the staff to develop clear implementation guidance, not only for applicants for these new permits so you all understand what’s required and how to move through the process, but also for our own staff at the regional boards,” he said. “We have nine different regional boards and staff at the State Board that are responsible for working on wetland permits when they cross over multiple regions, so it’s very important that we’re consistent across that framework.”
Mr. Maguire noted that the way the procedures are written, they are difficult to understand, and although it’s not a particularly long document, it’s a very dense one. So the State Board wants to ultimately provide easy to understand guidance to address key areas. “Our approach is to provide that nine month delay after OAL approval to give us time to develop that guidance document which will take a while, and to also work with stakeholders through that process,” he said. “The Board staff will be taking a stab at it and developing a draft and then hopefully later this year, we’ll be putting that our for you all to provide comments on. One thing that we want to make sure that it addresses all the areas and any question or confusions about the procedures.”
“One thing that we can’t do is change the regulations,” Mr. Maguire reminded. “However, we can interpret and provide clarity on some aspects. For example, with the three parameter wetland definition , there’s lots of discussion over how the Board staff will interpret what’s a wetland or not when a site is vegetated or not vegetated, and so we’re going to provide a photo library of what typical wetlands look like in different situations so everyone has a common understanding of how we’ll be using that.”
Mr. Maguire noted that they will be conducting a lot of training, both internally training of all the regional board staff involved in the wetlands program, but also external training of applicants and agencies.
Moderator Jerry Jungreis asked Ms. Coffee and Ms. Delfino what priority topics should be addressed in the implementation guidance?
Ms. Coffee said it will be important to provide guidance in terms of process time frames, starting with a list of things that should be submitted with their application. Some of those items are not very clear, so helping folks flush out what should be in their application, and how long should it take to review the application, what kinds of findings should come back, and then target dates for those timelines would be helpful.
It’s also important to give guidance how to delineate non-wetland waters as we currently don’t have a definition of those. “Right now, the best you can do is use existing guidance for CDFW which is sparse, and existing guidance from the Army Corps of Engineers, which is actually quite detailed, and then extrapolate from that as to what might be a non-wetland water of the state,” Ms. Coffee said. “I think we need to at least have some direction as to what to rely on in that regard so that we know what we’re dealing with in terms of non-wetland waters.”
Ms. Coffee also added advice, information, and perhaps streamlined procedures for developing mitigation plans and fitting those into watershed plans, as well as what constitutes a watershed plan and if stormwater management plans can effectively be turned into watershed plans that guide on the ground mitigation.
Kim Delfino pointed out that the environmental community also does projects and will likewise have to comply with the regulations. Defenders of Wildlife doesn’t have the capacity to do projects but they do work with a lot of groups who do projects and will have to use these regulations, so they want to see meaningful regulation that provides guidance and clarity because that benefits everyone.
“There were some vague things in the regulation that we would like to see clarified,” said Ms. Delfino. “We were very appreciative to see the concept of climate change being discussed in the regulations and understanding the effects of climate change on mitigation and other components; I think it’s something that needs to have clarity and guidance given by the board so that all of us understand what is being asked. We also want to see clarity and guidance around this concept of compensatory mitigation and what’s being required and asked of and how functional lift intersects with 1:1 as I think that needs to be clarified. Watershed plans were extremely vague. Who knows? We did say that some things were watershed plans; we didn’t say what things weren’t.”
Ms. Delfino said that despite litigation being filed, the regulations were very much a compromise. “But there’s a real fear among some of the conservation groups that this will not produce the protection against the net loss, so I’d like to see some guidance on reporting and assessment so that the regional boards and the State Board can keep track of what are the actual on-the-ground impacts of what these regulations are doing. Are they providing protection for wetlands?”
It will also be important to make sure that the myriad and diversity of wetland types are being preserved, said Ms. Delfino. “One of the problems we’re seeing with wetlands mitigation is that as you drive towards these more uniform wetland types, all the various complex different ways that wetlands exist out in nature are sort of getting simplified, and you lose the guilds and suites of species that are associated with these very complex types of wetlands, so I would like to see some guidance on reporting and assessment so that kind of thing can be tracked.”
Mary Lynn Coffee noted that it’s important to understand functional lift versus area. “With restoration projects, particularly with the 1:1 area of mitigation floor will be much more difficult to do, whether you’re doing those voluntarily or whether you’re doing those to mitigate for impacts of ongoing O&M or for construction, and so I think it’s critical that we begin to understand functional lift versus area and that we really begin reporting statistics, including functional lift statistics, as well as how long is it taking us to get these projects done, particularly the restoration projects. There are certain restoration projects that have been stalled because they can’t provide 1:1 mitigation for every type of habitat, even though everybody, all the agencies, and many of the NGOs agree they are good restoration projects, and that information really needs to make its way back to policymakers.”
Kim Delfino pointed out that the panel is discussing restoration as generic, but there is a category called Environmental Restoration and Enhancement Projects that are pure restoration projects not associated with providing mitigation for something else. “Those projects have been granted a very streamlined approach and do not have the mitigation requirements association with them, so there was a real effort to try to make restoration projects like Ducks Unlimited or Cal Waterfowl or River Partners – those projects don’t have those sorts of hang ups.”
Sean Maguire noted that one of the more potentially costly elements of the permitting process is the alternative analysis, so one area the Board is trying to address with the implementation guidance is what the expectations for the alternatives analysis are for the different tiers as well as the exemptions to the alternatives analysis and whether it is applicable.
“There is some explanation of it in the procedures, but we feel we could do a bit more thorough job of clarifying what those parameters are so that you know when you’re making an investment and hiring a consultant to do a fairly detailed rigorous analysis of alternatives for your project, whether it’s a new housing development or a recharge basin, that you know what will be involved and won’t have to go through multiple iterations with Board staff as you’re working through the process,” said Mr. Maguire.
Moderator Jeremy Jungreis noted that a lot of agencies involved in the process were concerned that new permits would be required for existing facilities, and that they would have to prove that an existing facility that may have been there for 80 to 100 years and may be subject to multiple agreements should be able to stay where it is. He noted that Southern California water agencies who have significantly existing facilities involved with groundwater recharge, with recycled water use, and other important public policy areas, were concerned that those existing operations could be threatened. “There is an exemption within the procedures that deals with O&M of existing facilities. How can public agencies document and assist the regional boards in determining a particular O&M project satisfies the exemption language from the procedures? For the water managers, what’s the best approach now and as the procedures being to be implemented?”
Daniel Cozad noted that they recently gave a tour of their facilities for the Executive Officer and staff of the regional board. He suggested looking at what the impacts to your facilities would be if you went through those procedures, and then think about what your regional board executive officer’s permitting staff will think about those. If you need help, ask for it, invite your regional board to help you think about them; then follow the implementation process and help your regional board follow that process because they have a few other jobs besides just this one to do, he said.
Mr. Cozad said that they were thinking about if a regional general order or a waiver for low impact projects is needed. “How do we get the big chunk of projects that are maybe even unpermitted now and the reason that they are unpermitted is they were a low priority for the board and they wouldn’t immediately leap to permitting 50 projects that have almost no impact, and they shouldn’t. They should be working on the ones that are high impact, but we have to get all of them through and how do we do that efficiently.”
Mary Lynn Coffee agreed, and said the advice she would give is to do an inventory of your current facilities that have soft bottoms, that have soft sides, that grow vegetation and need ongoing management – to do an inventory of those facilities and document the ongoing O&M . “The first step is know what you’ve got, know what your O&M is, know what your emergency requirements are, what your emergency maintenance requirements may be, and put all that together in a program and then start looking at the regional board for how best to document that exclusions, waiver of WDRs, 401 cert, etcetera. I will tell you, in my opinion, this is a use it or lose it. If people don’t use the exclusion, my guess is it will disappear.”
Moderator Jeremy Jungreis then turned to multi-benefit projects. Do any members of the panel want to comment on what they view as a multi-benefit project in the water resource perspective?
Daniel Cozad described some of the projects his district does. They manage 4000 acres of land which are mostly included in a Habitat Conservation Plan; there are 5 or 6 federally endangered species and a dozen or more state endangered species that all occur around their recharge basins, so for the last 15 years, they’ve been operating them with a renewed sense and understanding of the needs of those species.
“We’re trying out best without any federal permits to be able to take care of those species, which is pretty hard, because it’s hard to take care of a dog if you don’t own the dog and without a federal permit, we don’t own those dogs to be able to work with them,” Mr. Cozad said. “We fill those basins from time to time through the year, especially in the winter, and in the summer, all those same facilities are used by those endangered species, so we keep things like riparian vegetation alive that wouldn’t be alive otherwise, so there are lots of uses of those basins by species.”
“We could take a different approach,” Mr. Cozad said. “Say I bladed all of that and kept it denuded all the time as a maintenance activity and mitigate for that and be done, and that would probably be in the long-term the cheapest financial alternative, but it would be the worst environmental alternative. And so multi-benefit to us means how do we serve as many missions of various agencies as we possibly can on the limited land that is still available. This is the tricky part is how you would accomplish all those missions, not leave any of them out in that process.”
Multi-benefit projects could be groundwater recharge projects that have a habitat component to them; there was also a lot of discussions around advanced mitigation or even mitigation banks, said Kim Delfino. “For the environmental community, I think the issue is going to be understanding what the needs are, what the impacts and the positives and negatives are and to think through where we could see streamlining,” she said. “It’s hard to use the word streamlining in the environmental community, but simply trying to get good projects going faster in a less expensive and complicated way.”
Moderator Jeremy Jungreis noted that one pushback from the regulated community would be that now that they are required to get permits for things they didn’t have to before, and the potential for mitigation, that it’s now going to be a more expensive and time consuming process. How do you answer that concern?
“I don’t necessarily think getting a permit is a bad thing, the question is what does that actually mean,” said Kim Delfino. “I think the conversation around it is, what does it mean and are there ways to make sure you are providing environmental benefit but the cost is not prohibitive, so I think that there’s a lot there to be discussed. As opposed to what some people might think, we’re not here just to regulate just for the heck of it. Here’s the thing: the more heavy handed and burdensome the regulations are, the more time we have to spend defending them and the more you’re fighting around just the implementation of them rather than actually trying to achieve an environmental benefit. And no one wins when that happens.”
Mary Lynn Coffee said it’s pretty easy to define a multi-benefit project at a generic level, but it’s much harder when it’s a specific project. “I think a multi-benefit project is one that provides for wildlife or beneficial use, and then also has another water-related purpose such as stormwater or flood control conveyance, water supply conveyance, or water recharge, and doing that in a more naturalized way. People don’t really like the word naturalized because it’s a broad term, but something that serves a water public health and safety goal and at the same time serves an environmental goal, water quality, species, etc.”
“Where it gets tough is when you start talking about individual projects and certain projects are very loaded – dam building, very loaded; dam O&M also very loaded, but it needs to happen for public health and safety reasons and for water supply storage reasons,” Ms. Coffee said. “That’s when having a discussion about what can occur in terms of ongoing O&M at least is very important and trying to set some parameters there that balance that public safety and that environmental goal.”
“People look at stormwater channel and dam O&M as the largest ongoing or recurring environmental impact in the state,” said Ms. Coffee. “Now, if your house is protected, you might look at that as the largest ongoing recurring health and safety benefit in the state, so there’s a very different perspective. … With $70 billion of overdue dam O&M in the US, only $20 billion of that being for federal facilities, that’s an example of something we’re really going to have to tackle. We saw it with Oroville. We’re really going to have to figure out how to do it.”
Moderator Jeremey Jungreis said a couple issues that have been raised for these procedures is the availability for general permits, and also the reference in the procedures to watershed plans. “Watershed plans are different things to different people, but they have the potential to create certainty and potential streamlining for whole categories of projects along entire watersheds, so give your thoughts on how you see watershed plans playing out, and then discuss general permits as well.”
Sean Maguire said that we need to look at our water resources and management of our affected environment in an integrated way. “We don’t need multiple sets of plans, and thinking about solutions on a watershed basis is the way to go, because it does provide opportunities for identifying multi-benefit projects and it involves opportunities to work between the environmental community and water users collaboratively to develop solutions to address endangered species and water supply at the same time. So I think that’s why the procedures do allow for watershed plans to be a component to identify where mitigation projects can be included and functionally to allow them to simplify the application process.”
Mr. Maguire acknowledged that there is lack of clarity as to what an eligible watershed plan would look like and that should be addressed in the implementation guidance. “It became clear to me as we working through this over the last couple months that the board staff wasn’t really sure what ideal or an acceptable plan would look like, so I think if we get some examples out there and lay them out on the table and see what might be needed to be added or if they are good as they are.”
Mr. Maguire noted that they are working on an online application system that would be a comprehensive step-wise application process that everyone would use, regardless of what regional board they were reporting to. “We are hopeful that will help with moving things forward,” he said.
Kim Delfino agreed that there needs to be a lot more thought about what exactly would go into a watershed plan. “The idea of it is a good one in the sense that you’re looking holistically across the area and thinking in an integrated way about what are the projects that are out there and what are the resources that you have and what are the goals of what you’re trying to achieve, but what we don’t know, is that exactly how the State Board staff was thinking about it.”
“I think for us, we’d just like to see it be holistic, really looking across the watershed, taking a real view of what’s on the ground, but then also setting important goals and objectives of what you’re trying to achieve and how it all fits together,” continued Ms. Delfino. “I think particularly with mitigation, a lot of times the fault against mitigation banks or mitigation is that we don’t understand how it all fits together. They are just postage stamps strewn across the landscape not with any thought or any connection, and the more you can connect these things together, frankly the more sort of lift you’ll get and more buy in from folks who actually understand how it will provide a long-term benefit for the things you are trying to mitigate for, or mitigate to benefit.”
Moderator Jeremy Jungreis noted that basin wide plans are in the Clean Water Act, so the idea of regional management on a watershed basis is not new, but these procedures may force folks to manage on a basin-wide basis, find mitigation where it’s more cost-effective or where it has a greater environmental benefit than maybe in other areas.
Daniel Cozad points out that they’ve spent the last 20 years doing Integrated Regional Water Management Plans where that are supposed to do all of these things. “Do all of them meet that level? No, many don’t, many won’t, but if they involve the environmental community in their area, some of them will because those same questions that Kim is bringing up would have been brought up by those same people … The environmental community has different perspectives, and having the ones in your area involved in your plan will likely lead you to the right answers about what an integrated multi-benefit program is. And maybe we can reuse the investment the state has already made in those integrated plans. Certainly an NCCP or HCP looks at a lot of those, and if it looks at aquatics and wetlands, it should have most of the things in it. Hopefully we don’t go ten years of planning all over again just to come back to the same spot.”
Moderator Jeremy Jungreis noted there will be other State Board policies that are supposed to be consistent with the Governor’s Executive Order to solve some of the difficult problems that California has in the water space, so from a process standpoint, what did we learn from the recent adoption of the procedures that we can apply looking forward to foster the stakeholder collaboration that will be needed to implement these multi-benefit projects and recommendations going forward?
Mr. Maguire acknowledged it was his first experience with such a process, but they learned to collaborate, and when there’s a deadline established, it’s amazing how much is able to be accomplished, and in some ways, they learned not what to do again. “The Board recognizes that 15 years is too long. We had multiple iterations of the procedures over several years and in some cases, there was a gap of year or more between each set of iteration of that, and that’s just too long between time steps. What we realized was in the last four months, we had three different versions and that was through interacting proactively with stakeholders, having numerous workshops, having breakout meetings, encouraging different stakeholders to work together to develop some compromise language, and that was a really productive dialog. We worked through that mechanism able to get the policy across the finish line.”
“We have a number of other fairly contentious issues and policies coming up before the Board here in coming months and years, and so the Board is thinking about different ways we can take what we learned here with the wetlands policy and apply it going forward so we don’t repeat the same experience of 10, 15 years to complete a Board policy,” said Mr. Maguire.
“I don’t think we should replicate the process, but I do think important lessons were learned and one is certainly 15 years is too long to get something done,” said Kim Delfino. “With respect to the last six months leading up to the adoption of the rules, I do think that having facilitated discussions among the stakeholders and having discussions around particular points and refining where the differences were was helpful. So I do think that having a more facilitated discussion approach is good because and having board staff presence is important as well to help provide parameters and guidance is also an important lesson to draw out of what we just went through.”
“At the end of the day, I think when people sit down and have a focused collaborative conversation, usually solutions will emerge,” continued Ms. Delfino. “Some of this though honestly is also personality driven too. You have to have people willing to be engaged in a collaborative way. So it’s a little bit of art and a little bit of science together, but I do think that for the work that was done leading up to these regulations, that momentum should not be lost. The same collective group of folks that were rolling up their sleeves and working together, and hopefully others who want to join in, will move us into the implementation side. I’d hate to see it lag for a while and the board staff sort of go on and do their thing … with that said, obviously we have to adhere to the .. process and all that … “
Mary Lynn Coffee said the last six months was fruitful; in the facilitated meetings, there were some really nitty gritty transparent discussions with the regulators about how we’re reading their words on the page. “That’s what an attorney’s life is built over, finding out what the words on the page mean; not giving that interpretation short shrift but really digging in and understanding why different groups might be reading the words differently and what the policy intent behind that was … It doesn’t do us any good for all of us to stand up and say the same thing over and over again. We think it says this, somebody else thinks it says that, and we’re opposed to this, and we’re opposed to that, and really get into and understanding the policy reasons why that’s a big problem and looking of those solutions was critical and really helpful in this effort.”
Moderator Jeremy Jungreis noted that at the State Water Board workshops, they put up some of the individual concerns and requests for changes up on the board and let individual groups talk about why they thought it was good or bad. “That led to some of the dialog going back and forth where we actually discovered there were more commonalities than maybe we originally thought. That actually really helped the dialog between the operating agencies and the environmental groups.”
Mr. Jungreis then asked Daniel Cozad what advice he would have for other agencies that have difficult and complicated regulatory issues pending between the State Board and for new policies.
Mr. Cozad acknowledged that these things are incredibly complicated. “I’m sitting up here and you think I know what all this stuff means, but I am dependent upon smart lawyers on the other end of the table to help me figure this out. My job is to help explain it to my board. I was extraordinarily grateful to the Board for giving me the time and frankly the money to be able to pay some lawyers and take a bunch of my time to be in Sacramento and work on this stuff.”
“If you have one of these difficult issues, and you think you have something where the State Board or your Regional Board is going to skewer you, you should be investing in that,” Mr. Cozad continued. “That is the future of your agency and having a fully permitted agency that meets all the requirements is important and necessary. You should be taking that time. It is no different than investing in your CIP program. It’s not building stuff but it’s getting ready to build stuff. Investing in ACWA and your associations. The reason why I knew about this was because of ACWA Water Quality Committee. I walked in and listened to a presentation and said, ‘Oh my god I won’t be able to do my job, my whole mission is at risk in this.’ So I had no other option but to engage and make sure that it worked.”
“You learn a lot through the process,” Mr. Cozad said. “It’s called the other side but there’s not another side; you’re all trying to manage resources on behalf of the citizens of the state. I would echo that what the State Board did was great … I too have been in a 15-year planning process through CV-SALTS … as much as it came out in a great end, it is resource intensive, staff intensive, but there are 100 people in the Central Valley who know very clearly what they are going to do in the next few steps and how they are going to achieve the same goals. That also comes out of this, and we can be advocates to other water agencies that are trying to figure it out and that has a value that’s not easily understood. But it’s expensive and time consuming and difficult to get to.”
“What really made the difference in this situation was that it wasn’t just the lawyers or the water agencies standing up and saying, ‘oh the sky is falling’ because lawyers do that,” said Mary Lynn Coffee. “What really made the difference was our ACWA members on the ground showing up and saying this is how it affects this particular project or set of projects. It gave staff an understanding, it gave environmental groups an understanding, and it gave the Board an understanding, and so it wasn’t just a back and forth, he said, she said. Those examples were critical and could only happen with engagement of the actual water agencies themselves, and that’s hard to get sometimes.”
FOR MORE INFORMATION …
- Click here for more information on the new State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State.
- Click here for the Waters of the United States (WOTUS) Rulemaking page at the EPA.
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