State Water Board Faces First Legal Test Over Wetlands Definition

On April 2nd the State Water Resources Control Board (Board) issued its final regulations defining the term “wetlands” for California, even though the federal definition remains unclear. Shortly thereafter, the San Joaquin Tributaries Authority (“Authority”) sued the Board, challenging the new definition.

Since the 1970’s federal agencies have defined wetlands as areas that are inundated by surface or groundwater to the extent that under normal conditions vegetation is present in saturated soil conditions. Broadly, an area needs to include the factors of hydrology, soils and vegetation to be a wetland.

At the federal level, the EPA just closed its comment period for its new “Waters of the United States” (WOTUS) rule, which states that there must be a direct hydrological surface connection between wetlands and navigable waters for the Clean Water Act to apply.

However, in California, the Board charged ahead with its own wetlands definition that includes the above factors (hydrology, soils, vegetation) but it also allows for an area lacking vegetation to be deemed a wetland if hydrology and soils are present. This means that “non-vegetated” wetlands in arid parts of the state will be protected. Desert playas, for example, could fall under the definition.

The lawsuit filed in Sacramento Superior Court is the first challenge to the Board rule. First, the Authority alleges the Board violated state law in adopting the definition because it may only adopt a water quality control plan based on standards required by federal law. If particular waters are no longer a WOTUS, then they do not fall under Clean Water Act jurisdiction and are therefore not required by federal law. Thus, the Authority contends, the Board cannot exceed its authority to add non-waters of the United States to a water quality control plan.

Second, the Board rule adds new procedures for discharging dredged or fill materials into wetlands. The Authority alleges this is illegal because the state Porter Cologne Act’s definition of “waste” does not include the discharge of dredge or fill material. Third, the Authority contends the Board violated federal law by only releasing the final version of the rule four days before adoption.

The state definition presents a number of challenges for compliance, including the cost of complying with a federal and state definition, the expense of mapping the same property twice, and delays stemming from a more rigorous application process with the Board. Any additional costs and delays could create further obstacles with housing development and even transportation improvements.

CalChamber will continue to monitor this issue and provide updates as they arise.

Valerie Nera, Policy Advocate