November 26, 2019
Well, this may be a repeat blog title for us given the tumultuous regulatory times! Consider this version 1.0. Yes, much has been happening in the dynamic world of aquatic resource regulations, and we’re here to help you figure out what it means for us now. Our aim is to provide you the key updates as concisely as possible; however, with everything that’s been happening, we’d strongly suggest grabbing a snack and maybe doing a little stretch before diving into our summary below.
Let’s start with a summary of what we’ve been referring to as the “Clean Water Rule Saga” with the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA). Then we’ll get into how the State Water Resources Control Board (SWRCB) has been taking matters into its own hands with the implementation of its processing procedures and adoption of an official wetland definition, which took about a decade to develop.
Clean Water Rule History and Current Status
In June 2015, the Corps and the EPA, under the Obama administration, issued a final rule amending the definition of “waters of the U.S” (or WOTUS) for the purposes of the Clean Water Act (CWA) and made other changes to the Corps’ and EPA’s associated regulations. These changes were collectively referred to as the “Clean Water Rule.” The Clean Water Rule aimed to clarify previously applicable regulations and guidance (i.e., the 1986 and 1988 versions of 33 Code of Federal Regulations (CFR) 328.3 and guidance derived from the 2001 Solid Waste Agency of Northern Cook County [SWANCC] and 2006 Rapanos Supreme Court decisions) and other more recent scientific findings into a cohesive regulation, thereby updating the Corps’ and EPA’s definition of WOTUS at 33 CFR 328.3. Much debate arose over whether the Clean Water Rule was a good or bad thing. Clean Water Rule fans were happy to have clarification and simplification of what the Corps considered jurisdictional, coupled with better-defined and science-based terms relevant to calling a feature jurisdictional, such as “tributary” and “adjacent”; on the other hand, opponents of the Clean Water Rule found it to be far-reaching, extending jurisdictional status beyond what should be considered WOTUS.
The Clean Water Rule was heavily litigated and even nationally stayed (i.e., temporarily stopped) in October 2015 based on the probable success of claims against the rule from 18 states. The Clean Water Rule remained effectively stayed for nearly three years, during which the EPA and Corps, under the Trump administration, began their efforts to permanently get rid of the Clean Water Rule. As a start, beginning in February 2017, Executive Order (EO) 13778 directed the EPA and Corps to undergo a two-step process to repeal the Clean Water Rule and create a new definition of WOTUS. We’ll get into those two steps in more detail later. A year later in February 2018, the EPA and Corps also attempted to change the applicability date of the Clean Water Rule which aimed to delay its implementation and allow for more time to rewrite the definition of WOTUS.
In response, in August 2018, a federal judge out of South Carolina reinstated the Clean Water Rule through an injunction stating that the Corps’ and EPA’s Federal Register publication of the applicability date change did not follow the Administrative Procedure Act. The injunction, however, only made the Clean Water Rule effective in 26 states; the 24 remaining states remained under pre-2015 Clean Water Rule WOTUS regulations and guidance because of related ongoing litigations. Yes, that’s right. A federal/national definition for what is and is not jurisdictional by the Corps and EPA was only applicable in about half of the country. Two subsequent court actions then reduced the number of states subject to the Clean Water Rule to 22 states.
Efforts to replace the Clean Water Rule continued through the two-step process directed in EO 13778. Step 1 would repeal the Clean Water Rule, which the Corps and EPA officially put into motion on September 12, 2019. On October 22, 2019, the EPA and Corps officially published the repeal in the Federal Register, which means pre-2015 regulations and guidance for defining waters of the U.S. will apply in all states starting on December 23, 2019.
Step 2 involves revising the definition of WOTUS. In December 2018, the Corps and EPA initiated Step 2 by proposing their preferred definition of WOTUS (i.e., instead of pre-2015 guidance and regulations or the Clean Water Rule definition). This updated definition of WOTUS is quite different than the Clean Water Rule definition. Most notably, the 2018 WOTUS definition would exclude all ephemeral features as federally jurisdictional. So, the common southern California ephemeral stream, for example, would no longer be considered a WOTUS. The intent of this new WOTUS definition is to limit the Corps’/EPA’s jurisdictional authority to bigger, perennial and intermittent waters and to not necessarily include those that connect to them.
Surprisingly, everything mentioned above does NOT cover all that has happened since the publication of the Clean Water Rule, but we hope this gives you an overview of the key pieces that have gotten us to where we are today.
So where are we now?? Well, we’re heading toward pre-2015 regulations and guidance with respect to what is and is not a WOTUS beginning on December 23, 2019. We hear the proposed 2018 WOTUS definition will be published in January 2020.
What’s actually going to happen? We wish we knew! We do, however, feel confident that whatever happens will involve much litigation, uncertainty, and confusion to the regulated public and the regulators themselves. Luckily for you, we are tracking this process closely and will remain up to date on this issue. Let us know how we can help.
You can also visit the EPA’s website, including their press releases, for WOTUS updates here.
Overview of the State’s New Wetland Definition and Procedures
With all the changes and uncertainty in federal regulations, the State of California is taking some matters into its own hands to prioritize environmental protection. The SWRCB recently adopted its State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State (Procedures). The SWRCB has been working on the Procedures since 2008; however, they certainly seem to have picked up speed toward completion since the Corps and EPA proposed changes to the WOTUS definition. The SWRCB adopted the Procedures on April 2, 2019, although they won’t be applicable to projects until May 28, 2020. The primary goals of the Procedures is to define what a wetland waters of the state is, provide details regarding application submittal requirements, and establish a uniform regulatory process throughout California.
Here’s a brief summary of the Procedures’ four major elements:
- SWQCB Wetland Definition and Jurisdictional Framework. The State Wetland Definition defines an area as a wetland if it meets 3 criteria, per the Corps’ methodology (i.e., 1987 Wetland Delineation Manual and 2008 Supplemental Arid West Wetland Delineation Manual): wetland hydrology, wetland soils, and (if vegetated) dominance of wetland plants. The primary difference with the State Wetland Definition from the Corps’ is that an unvegetated area with wetland hydrology and hydric soils can qualify as a state wetland (e.g., unvegetated mudflats or playas with indicators of wetland hydrology and hydric soils). The Procedures further clarify what would be considered wetland waters of the state, such as natural wetlands, previous surface waters that are now wetlands, and some artificial wetlands. The procedures exclude several types of artificial wetlands (less than or equal to 1 acre in size) such as stormwater detention ponds. Furthermore, artificially created, temporary features, such as tire ruts or other transient depressions caused by human activity would not be jurisdictional by the state, whereas small, naturally occurring features, such as seasonal wetlands and small vernal pools that may be outside federal jurisdiction would still be state-jurisdictional. This doesn’t change much from current practice.
- Wetland Delineation Procedures. For this part, the Procedures conclude that the Regional Water Quality Control Boards (RWQCBs), with oversight from the SWRCB, will rely on a wetland delineation officially approved by the Corps to determine the extent of wetland waters of the state. For wetland areas not verified by the Corps that would otherwise be potential waters of the state, a delineation must be performed using the Corps’ wetland delineation methodology.
- Permit Processing Procedures. A majority of the Procedures establish specific steps in the application process for discharges of dredged or fill material to waters of the state via the Clean Water Act Section 401 certification process. This includes new, official requirements for including an alternatives analysis with a 401 application, with tiered levels of analysis required generally depending on the level of impacts. The Procedures also includes application submittal requirements and set a minimum mitigation ratio of 1:1 for any permanent impacts to waters of the state as well as other requirements for mitigation plan submittals.
Prior to the Procedures, there was no single accepted definition of wetlands at the state level, and the RWQCBs had different requirements and levels of analysis with regard to the issuance of 401 water quality certifications. While some welcome this change to the regulatory world, the Procedures will create a new application and evaluation process and is expected to increase the level of information required in RWQCB 401 water quality certification complete applications (i.e., previous lists of what RWQCBs required for a complete application didn’t cover everything the RWQCBs need to process an application). The SWRCB announced a Notice of Public Meeting Informal Stakeholder Meeting to Inform the Development of Implementation Guidance for the Dredge or Fill Procedures for Monday, December 2, 2019, 2:00 p.m. – 4:00 p.m. which will cover the implementation guidance for the Procedures and anticipated 2019-2020 schedule. Public training on the Procedures is anticipated in Spring 2020.
For more details on the Procedures, you can visit the SWRCB’s website here. We’ll plan to get into this in much more detail as we get closer to the May 28, 2020 applicability date. So stay tuned…
If you want to know more or need help with a project where these changes will come into play, reach out to us!