New California Wetland Regulations

Prado WetlandsAmerican Wetlands Month is celebrated in May. The state of California has recently given us even more reason to mark the event and understand the importance of these sensitive water resources, and other waterways, such as bays, estuaries, streams, and rivers and why we need to protect them.

In April 2019, the State Water Resources Control Board (State Board) approved a regulation entitled “State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State.” It comprehensively regulates waters/wetlands and expands the “wetlands” and “waters” that are now subject to regulation.

The Procedures consist of four major elements: 1) a wetland definition; 2) a framework for determining if a feature that meets the wetland definition is a water of the state; 3) wetland delineation procedures, and 4) procedures for the submittal, review and approval of applications for Water Quality Certifications and Waste Discharge Requirements for dredge or fill activities in Waters of the State.

The Procedures, if triggered, require a new permitting process that includes: (1) a comprehensive alternatives analysis; (2) compensatory mitigation; (3) climate change analysis—transforming some previously non-regulated activities into multi-year permitting processes.

OCWD maintains the 450-acre Prado Basin Wetlands to improve water quality of the Santa Ana River. In addition to enhancing water quality, the constructed wetlands provide extensive natural resource values, including riparian habitat and waterfowl habitat. OCWD already complies with regulatory permits to maintain the District’s facilities.

An initial, draft version of the Procedures would have placed extensive new regulatory burdens on OCWD’s Prado Wetlands and groundwater recharge facilities without a proportionate environmental benefit. OCWD, other water agencies, the Association of California Water Agencies, and other stakeholders worked with the State Board to reduce the regulatory burden of the Procedures for water districts.

This collaborative effort with the State Board resulted in the following protections for District wetland operations:

1.Obtained exclusions in the Procedures from the definition of Waters of The State for some groundwater recharge, stormwater treatment and recycled water projects not located in federal jurisdictional waters. This exemption will assist water agencies with off channel percolation ponds and other recharge facilities.

2.Obtained an exemption for operations and maintenance of most water district facilities already existing within Waters of The State.

3.Obtained clarification that projects with existing state permits for operations and maintenance are not required to obtain the new permit per the Procedures until the existing state permits expire. It also authorized the Regional Boards to extend existing 401 Certifications and Waste Discharge Requirements without triggering a requirement to obtain a permit under the Procedures.

4.Obtained permit streamlining for public agency operation and maintenance activities of existing facilities not otherwise determined to be exempt.

The adopted rules will take effect next year, following approval by the state Office of Administrative Law.