The State Water Resources Control Board voted this week to increase state protections for wetlands by adopting both a new wetlands definition and procedures for obtaining associated dredge and fill permits. The regulations create a more expansive permitting scheme for developers, public agencies and others proposing to discharge to state waters.

The proposed regulations increase protections for episodic bodies of water that provide ecological and economic benefits. The Board has considered a revision to the wetlands definition for nearly a decade, but was prompted to move quickly in response to proposed changes by the Federal Environmental Protection Agency that could reduce the reach of the federal the Clean Water Act.

The wetlands regulations will impose limitations and mitigation requirements on discharges into surface waters and wetlands within California and define which surface waters and wetlands are regulated under state law only — beyond those water bodies still subject to federal requirements under the CWA. The policy includes a discretionary exclusion for routine and emergency operation and maintenance activities for public agencies, water utilities and special districts.

The Board adopted the new wetlands definition during a public hearing. It did not make any substantive changes from those proposed after its March 5 workshop. However, the Board did make minor revisions that could increase monitoring and reporting requirements by those receiving permits. The wetlands policy will now go to the Office of Administrative Law for a 9-month review period before it goes into effect. The policy contains a grandfathering provision that excludes project applications pending before the effective date.

Best Best & Krieger LLP attorneys represent public and private entities before the State Water Resources Control Board, and previously assisted cities and other stakeholders during the administrative process that yielded the new wetlands definition.

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