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Wetland Protections in Transition

By Cariad Hayes Thronson

Environmentalists are heading warily into the fall following two regulatory developments that they fear may cramp efforts to protect California’s wetlands. In June the State Water Resources Control Board released a draft document overhauling wetlands protection procedures but leaving open the question of exactly which wetlands are eligible for protection. In the same month the U.S. Supreme Court ruled that landowners may mount court challenges to U.S. EPA or Corps of Engineers jurisdictional determinations before a permit is issued, potentially generating a torrent of wetlands-related litigation.

wet-dscn7111-500The State Board’s proposed Procedures for Discharges of Fill or Dredged Materials to Waters of the State are the upshot of nearly a decade of effort to strengthen wetlands protections and to create consistent discharge requirements across all of the Regional Boards and the State Board. Despite a 1993 Executive Order mandating no net loss of wetlands, the Corps of Engineers estimated that 300-400 acres of waters of the United States, some of which were wetlands, were lost annually between January 2007 and April 2009. Additionally, two Supreme Court decisions in the early 2000s limited the ability of the Corps to protect wetlands through the federal Clean Water Act and left several ecologically significant types of hydrological areas without federal protection. “This policy was supposed to be something that would stop the loss of wetlands in California,” says Carin High of the Committee to Complete the Refuge.

As in the past, the procedures align closely with the CWA and are designed to work in tandem with it. However, the proposed definition of wetlands differs from the CWA’s in that an area can be classified as a wetland if it has wetland hydrology and soils, even if there is no vegetation. It therefore includes some types of aquatic features that are not necessarily covered by the CWA such as mudflats and alkali flats.

Environmentalists are disappointed that the wetlands definition does not cover ephemeral wetlands, such as those that appear in desert areas after heavy rains. They favor a “one-parameter” definition whereby a site is classified as a wetland if it has just one of three characteristics: water on or near the surface; hydric soils; or hydrophitic vegetation (vegetation that likes being in water).

“There are many types of seasonal or transient ‘waters’ that naturally don’t meet federal wetland criteria,” says former Corps regulator Peter Baye. “Some of these orphan ’waters’ provide important ecosystem services.”

wet-dscn7043-500An even more significant issue for wetland advocates, though, is that the proposed procedures state that not all wetlands are “waters of the state” and therefore eligible for protection under California’s Porter-Cologne Water Quality Control Act. Exactly which wetlands are also waters of the state is left to the Regional Boards and the State Board to decide on a case-by-case basis—and the procedures do not provide any guidance on how to make the determination.

“It’s puzzling and frustrating,” says long-time wetland activist Arthur Feinstein. “The definition does not tell you if it’s a water of the state or not, or how you would decide if it’s a water or not. It actually makes things worse because it leaves the question of whether a wetland is a water or not completely open to political influence and favoritism. Regulators have got to figure out how to defend whatever decision they make, so the likelihood is that every delineation will be subject to a lawsuit. And that’s a crazy way to regulate.”

What the environmentalists see as a bug, however, State Board staff saw as a feature of the proposed procedures. “We tried to be very clear about it,” says the Board’s Phil Crader. “We were not trying to define which wetlands features or other types of features are waters of the state—we were just going with current practice which is to determine that on a case-by-case basis. All of the aquatic features that would be subject to permitting under the proposed procedures were subject to permitting before, and the manner in which we determine whether they are waters of the state will be the same as always.”

Crader notes that after the EPA released its 2015 Clean Water Rule, which defines “waters of the U.S.” and categorically excludes certain features and activities, the Board spent several months talking with the Regional Boards about the types of features they have regulated in the past to determine if a similar definition and exclusions could be included in the procedures. “It was a very challenging exercise,” he says, “One of our goals has been not to undermine our Regional Boards or the State Board in protecting features that they have protected in the past.” When several federal courts stayed implementation of the CWR, the Board backed off its effort as well, falling back on the policy of case-by-case determination.

wet-dscn7018-500Environmentalists who participated in stakeholder meetings to develop the procedures see this as akin to a betrayal. “At best the Board is saying that they are codifying the status quo,” says Kim Delfino of Defenders of Wildlife. “That is not acceptable because under the status quo we are losing hundreds of acres of wetlands every year.”

Definitions and delineations are not the only sticking point for environmentalists. The new procedures were supposed to create a regulatory process based on the CWA guidelines, which require an applicant to perform an alternatives analysis to show that there is nowhere else they can do the project, to minimize the environmental damage, and to carry out compensatory mitigation for any damage. “But the proposed procedures make the alternatives analysis entirely discretionary, to be decided on a case-by-case basis,” says Feinstein. “And again there’s no criteria for when you would need it or not.”

Crader says the proposal was intended to allow staff the option of using the analysis that the applicant provides to the Corps of Engineers where possible, but also to allow staff to require additional analysis when needed. Stakeholders have requested more clarity around this requirement, and staff is considering options.

When it comes to compensatory mitigation, the draft procedures call for a one-to-one ratio of wetlands restored to wetlands destroyed. This has never really been viewed as a fair trade. “We are not able to create wetlands that match the functioning values of wetlands destroyed,” says Feinstein. “You need more like a two-to-one or three-to-one ratio.” Furthermore, the draft says that if the discharger includes a buffer area, the mitigation can be less than one-to-one.

Compensatory mitigation requirements must be commensurate with the amount and type of impact that is associated with a particular permit, according to Crader, who adds that the proposed strategy generally uses a minimum of one-to-one as a starting point. “This strategy is currently employed to determine mitigation amounts and often results in ratios greater than one-to-one being required,” he says.

Carin High sums up environmentalists disappointment with the proposal. “Where’s the strong policy, where’s the protection? It is not apparent to us in anything that is written in this document.”

According to Crader, Board staff got the message loud and clear during a July 19 hearing and through public comment letters. “We are taking a step back and looking again at opportunities to identify features that meet the wetland definition and are either always waters of the state or never waters of the state, but doing so with the recognition that we put a fair bit of effort into this exercise before and found that the majority of features do not fit neatly into either category. But we want to respond to the concerns we have heard, so we are exploring some options.” Given the extent of the comments, Crader expects staff may propose substantive changes. If so, then the Board will release another draft for public comment later this year.

The other wetland regulation horizon fraught with uncertainty derives from the Supreme Court’s unanimous decision in U.S. Army Corps of Engineers v. Hawkes, Co. The Army Corps is pondering potential options for responding to the implications of the decision, which allows court challenges to determinations by the Corps or the US EPA that property targeted for fill includes jurisdictional wetlands or other waters of the U.S., without the need to wait for a permit to be issued.

The danger, says S.F. Baykeeper’s Erica Maharg, is “the practical effect that this can have on inhibiting Army Corps and EPA action. Staff may be more reticent to issue jurisdictional determinations because of the fear of litigation. We just want to encourage staff to do their jobs and not worry about litigation.”

According to the Corps’ Doug Garman, the agency plans to do just that. “We have emphasized to our field staffs how important it is to continue providing timely, consistent, and accurate determinations regarding the scope of waters covered under the CWA and the Rivers and Harbor Act of 1899,” he says.
Maharg worries that the State Board’s draft procedures and the court’s decision may reflect a troubling trend. “There has been a line of cases and policies questioning whether wetlands can and should be protected by the CWA and state law,” she says.“It’s important to remember that wetlands are vitally important to the health of nearby surface waters and it is extremely important that they be protected overall. So the whittling away at what we define as wetlands or curbing staffs’ discretion to protect these wetlands is concerning.” CHT

Phil Crader
Erica Maharg

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About the author

Cariad Hayes Thronson covers legal and political issues for Estuary News. She has served on the staffs of several national publications, including The American Lawyer. She is a long-time contributor to Estuary News, and some years ago served as its assistant editor. She lives in San Mateo with her husband and two children.

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