Welcome to Digging Into Land Use Law, our podcast covering the development of all things in, on or above the ground. Be sure to subscribe wherever you listen to podcasts so you don't miss an episode!

     

  • What’s in a Wetland: An Overview of Federal and State Developments in Defining Jurisdictional Wetlands

    In this episode of Digging Into Land Use Law, Nossaman Environment & Land Use partner Mary Lynn Coffee and Stephanie Clark explore the eternal question – at least under federal and California law – what’s in a wetland? In recent years both the federal government and California have taken steps to provide a specific definition of what is a jurisdictional wetland. In this episode, we give a broad overview of what the current lay of the land is at both the federal and state levels, and offer some predictions for how that might change in the coming years.


    What’s in a Wetland: An Overview of Federal and State Developments in Defining Jurisdictional Wetlands Transcript

    0:00:00.4 Stephanie Clark: The eternal question, at least under Federal and California law, what's in a wetland? Today, we're looking at the latest California and federal regulatory developments in defining what constitutes a jurisdictional wetland. In recent years, both the Federal Government and California have taken steps to provide a specific definition of what is a jurisdictional wetland.

    0:00:21.1 SC: In today's episode, we give a broad overview of what the current lay of the land is at the federal and state levels, and some predictions for how that might change in the coming years.

    [music]

    0:00:36.0 Speaker 2: Welcome to Digging Into Land Use Law, Nossaman's podcast covering the development of all things in, on, or above the ground.

    [music]

    0:00:51.2 SC: Hi everyone, and welcome to Digging Into Land Use Law. My name is Stephanie Clark, and I'm an associate attorney in Nossaman's Environment & Land Use Group. I'm joined today by Mary Lynn Coffee, an environment and land use senior partner with more than 30 years of experience providing legal and regulatory advice and counsel regarding wetlands and water quality.

    0:01:11.1 SC: Mary Lynn has advised on permitting and compliance for a number of private and public projects throughout California, and has advised on permitting compliance strategies for projects outside of California as well. Homebase for both of us is Nossaman's Orange County, California office. Welcome, Mary Lynn.

    0:01:26.7 Mary Lynn Coffee: Thanks, good to see you.

    0:01:29.4 SC: Good to see you as well. So before we get too far into this, because I know it gets really hairy really fast, to the extent you can, because I know this is a very big ask, what are some of the most important things for our audience to know about the federal Clean Water Act and the Porter-Cologne Act at the state level?

    0:01:48.7 MC: In California, we regulate natural resources twice, almost always, and both of these acts play role at, one at the federal, federal Clean Water Act, and with the state level, Porter-Cologne, in regulating wetlands. Wetlands actually is much more broadly defined than that. When we're talking about regulation in terms of protecting wetlands, we're really talking about protecting all types of aquatic features.

    0:02:15.6 MC: Wetlands, as most people define them are marshes, salt marshes, fresh water marshes, but both acts protect other kinds of non-wetland waters as well, things like creeks and streams. The extent to which they protect streams that don't have water in them called "ephemeral or intermittent" streams is somewhat debated, but they both protect to some extent those kinds of channels and streams, rivers. It's much broader than what normally would be referred to as a wetland, but "wetlands" is kind of a catch-all phrase.

    0:02:48.0 MC: Both of those acts protect aquatic features, and at the federal level, what we see in terms of wetlands Protection is that we have section 404 of the federal Clean Water Act, which requires a permit for any discharge of dredged or fill material to aquatic features defined in the statute and the regulation as "Waters of the United States".

    0:03:13.8 MC: "Discharge of dredged and fill material" really just means a discharge of dirt into a water of the United States, and that often happens when you need to build an infrastructure or project or a private development project, there would be discharges of fill, for example, if you are going to build a bridge over a stream, there'd be a discharge of fill for the pilings to cross the stream. There's discharges of dredge and fill when you're filling a wetland so that you can build a building on top of it.

    0:03:43.1 MC: These kinds of things are regulated under section 404 of the Clean Water Act, and you have to have a permit from the Army Corps of Engineers and provide mitigation and meet other requirements in order to be able to discharge that fill. Most importantly, you need to make sure that there's no net loss of the protected resource.

    0:04:01.7 MC: Similarly, the state Porter-Cologne Act also regulates discharges of dredge and fill at the state level. A fun fact is that the Porter-Cologne Act was actually adopted in the mid-'60s to regulate discharges of dredge and fill and other kinds of pollutants. And the federal Clean Water Act was modeled on the California Porter-Cologne Act. It was adopted in '72 and was based on our California act.

    0:04:31.1 MC: Both now in parallel, regulate discharges of pollutants and discharges of dredge and fill. Under Porter-Cologne, those discharges of dredge and fill are regulated under two different sections of Porter-Cologne. One section is 13-263, which requires waste discharge requirements, that's what we call our state law permit, WDRs or waste discharge requirements for any discharge of waste, including discharges of dredge and fill.

    0:04:57.8 MC: Then there's a separate section of Porter-Cologne, which actually tasks the Water Boards with issuing what's called Clean Water Act Section 401 certifications. The federal Clean Water Act requires a certification from the state agency, that in fact, a 404 permit and a discharge of dredge and fill that's being permitted under the federal Clean Water Act complies with all state laws that govern discharges of waste and discharges of pollutants, discharges of dredge and fill.

    0:05:32.3 MC: They have two sets of jurisdiction under Porter-Cologne to regulate these discharges of dredge and fill. One is under 13-263 in the form of WDRs, the other is in the form of issue in a 401 cert under the latter adopted provisions of Porter-Cologne.

    0:05:50.5 SC: Now, I know one of the weird things about the federal Clean Water Act, because I'm going to start with federal and then go into the state, is that it uses this lovely term "Waters of the United States" throughout the whole act, but it doesn't actually define that term anywhere in the act, so it's really been up to the courts and now several different iterations of regulation to try and define what is a water of the United States.

    0:06:20.2 SC: In the last couple of years, about the last six years, that's really kind of started to heat up. We had some initial attempts to regulate what is a water of the United States through the courts initially, then in 1987, there were some regulations put out by the Army Corps and the EPA. And then in 2015, the Obama administration did the first very major overhaul of those regulations in response to a whole series of Supreme Court decisions that we won't go into too far, but they're sort of the key Clean Water Act decisions made through the course of all of these decisions, established what's known as the "significant nexus test".

    0:07:00.5 SC: That was based on a concurring opinion by Justice Kennedy, in I believe the Rapanos versus the United States case. Basically it's, a water is a water of the United States if it has a significant nexus to a traditionally navigable water. It sounds like a little bit of a squishy test because it kind of is. [chuckle]

    0:07:21.0 SC: The regulations have really tried over the last six years to tease out what that means. In 2015, the Clean Water Rule tried to define that in really more scientific than practical terms, there was a lot of science behind that regulation, and it went into water flow and interconnections, sub-surface connections, a lot of things that if you're a regulated person trying to construct your little project, you may or may not see, but had to do a whole bunch of more investigations to find.

    0:07:52.1 SC: As is tradition in environmental law, those regulations, the 2015 Clean Water Regulations, were immediately challenged in lawsuits all across the country, with one side arguing that it brought too many waters under federal regulation, and the other side arguing, "Well, no, it really didn't bring enough waters within federal jurisdiction."

    0:08:12.3 SC: That really resulted in a patchwork where the rule applied in some places, it didn't apply in other places, and that litigation was still going on when the Trump administration took office, and it was seen as a major problem by the Trump administration for the regulated community. And this is a very short version of this very, very long story, [chuckle] but the Trump administration ultimately over the four-year course of that administration, repealed the 2015 Clean Water Rule.

    0:08:43.0 SC: They didn't actually do that until 2019, which is pretty far into that administration, but what that means is they essentially said, "No, the 2015 Clean Water Rule doesn't exist anymore," and we went back to the 1987 regulation. After that, they embarked on the journey of establishing their own set of regulations of what is a water of the United States. That resulted in the 2020 enactment of the Navigable Waters Protection Rule. So that's the Trump administration's role. It went into effect last year.

    0:09:17.1 SC: And again, as is tradition in environmental law, the Trump administration was immediately sued over that rule. Those lawsuits are still going on all over the country, but the bottom line is the 2020 Trump rule, the Navigable Waters Protection Rule is now the law of the land everywhere. For a little while, it wasn't the law of the land in Colorado, that was its one little hold out, but the Tenth Circuit very recently made it the law of the land everywhere, by basically saying that in Colorado, the District Court didn't properly decide that Colorado should be exempt from applying the Trump rule.

    0:09:56.0 SC: They've now required Colorado to implement it, and the Biden administration has asked for a stay. In most of those cases, they're all in various stages, but specifically in Colorado, and this may be the one hold out here, the Tenth Circuit declined to stay the case and kick the can down the road for the Biden administration.

    0:10:17.8 SC: That is the one case that's really forging ahead at the glacial pace of federal ligation. [chuckle] So that's where we are today, and given all of that very complicated history, Mary Lynn, where do you think the Clean Water Act regulations are likely to go under the Biden administration?

    0:10:37.3 MC: Well, that's the...

    0:10:37.3 SC: Million-dollar question?

    0:10:40.1 MC: More than million-dollar question for many of the regulated community, right? We did see the Obama administration adopt a rule in 2015 that generally defined more broadly "waters of the United States", so more aquatic features were included in the jurisdictional area, more permits were needed by the regulated community to discharge dredge and fill.

    0:11:00.6 MC: Ultimately, we saw the Trump administration adopt a rule that significantly departed from that significant nexus test you were talking about that was established by the Supreme Court in Rapanos, and that rule really focused on including as waters of the United States, only those types of aquatic features that have water running in them, some water flowing, excluded ephemeral drainages, and also looked much more closely and required a much more close connection that involved flowing waters between adjacent wetlands and streams and these traditionally navigable waters. The Trump rule did narrow that jurisdiction.

    0:11:48.6 MC: As we see in every administration, every administration take stock of what the last administration did in its rule-makings, take stock of the litigation pending, and then decides how to move forward. We would anticipate that now that all these cases are pending over the Trump rule, we would anticipate that Biden would not just request a stay, but actually would stop defending the 2020 Biden rule.

    0:12:19.2 MC: The Biden team made no secret of the fact that they thought that the Trump rule was too narrow in terms of protecting wetlands and aquatic features, so I would fully anticipate that they will step back from defense of the 2020 rule and that will leave the litigation either being stayed, so it doesn't move forward, maybe ultimately withdrawn. That's the litigation side.

    0:12:45.3 MC: But then the question is, will they leave that 2020 rule in place? Or will they try to repeal it and replace it with something else? Odds are, and they will try to repeal it and replace it with something else. And the question is, what can they do in a four-year term, because obviously, we have very high priorities in terms of getting vaccines in arms, dealing with the COVID crisis, so will they have enough time to address the 2020 rule, and how will they most likely do that?

    0:13:18.1 MC: I think you can weigh in on this because you have been watching the litigation for Nossaman, but what we saw in the Trump administration's approach might actually provide a viable approach for the Biden administration in addressing this. I believe we saw in the Trump administration that their action to repeal, just repeal the Obama rule, and then to go back to the pre-2015, those 1987 regulations, we saw that upheld in a few courts, as I recall.

    0:13:50.6 SC: Yeah, it was actually challenged initially. Some of those lawsuits morphed over time and are now challenging the 2028 Navigable Waters Protection Rule, but the action of simply repealing the 2015 Clean Water Rule, that was upheld in several courts. So that really does provide a bit of a pathway for the Biden administration. If they're looking to make the Navigable Waters Protection Rule go away, at the very least they now have a roadmap for within four years, it is absolutely certain that they can, at the very least, repeal it.

    0:14:27.9 MC: Mm-hmm, and go back to that 1987 regulation, which was broader, did define "waters of the United States" more broadly than that Trump rule does. And so that might be one of the rare circumstances we might see the Biden administration take a page from the Trump administration.

    [chuckle]

    0:14:48.2 MC: I would anticipate that action occurring and then the question of course becomes what do they replace it with? Do they replace it with a rule, do they leave the 9987 rules in place, or do they simply try to replace it with the Obama rule? My guess is what we would see there is that they would attempt to replace it with a Biden rule, perhaps if they can get that done in four years. My guess is that the Biden rule will be very much based on the Obama rule, and that they will tweak that Obama rule to address some of the issues that it appeared in the litigation before it all became moot with the Trump rule, that it appeared in the litigation created issues for that, the legality of the Biden rule.

    0:15:38.5 MC: There were certain provisions in the Obama rule that courts question fairly openly, even though they didn't decide on whether they were legal or not. One of those was the attempt to regulate anything within a certain linear foot of an otherwise jurisdictional water. And I think we could see that they try to tweak those provisions which looked like the courts did not favor, and issue a Biden rule, that I suspect, given the time, given the administration was, was a part of the Obama meditation. I suspect that the new rule, if they issue one, will be largely based on the Obama 2015 rule.

    0:16:23.5 SC: That sounds likely, because a lot of the legwork was already done under the Obama administration, and certainly the current President was part of that administration, but I guess what we have seen under the Trump administration is that four years is just not a lot of time given all of the moving pieces here, and it's certainly not enough time to anticipate all of the many varieties of lawsuits that will inevitably follow.

    0:16:52.8 MC: Right, right. And given that lack of time, of course, we know the Administrative Procedures Act requires any regulation to be grounded in and based upon substantial evidence, and the Obama rule certainly was based upon a lot of technical evidence. That evidence has been summarized in response to the litigation that was pending before it became moot. I suspect that rather than reinventing the wheel and trying to come up with all that new substantial evidence, that the path of least resistance would be to really just rely upon both that substantial evidence and the prior rule, at least for the vast majority of a new Biden rule.

    0:17:38.3 SC: And the million-dollar question will remain, is four years enough time for them to do it? [chuckle]

    0:17:50.3 MC: Yeah. "Water of the United States" is something that will remain a question for my lifetime for sure, and maybe for yours. That is a problem actually for our clients though, for the regulated community, because we see the definition of "waters of the United States" remain so uncertain, and that is what governs the first step that you take in permitting any kind of development project.

    0:18:13.5 MC: You need to have a delineation of waters of the United States to start your 404 permit process. The rules you use to devise that technical delineation, which is essentially a map of the waters of the United States that you might affect with a project, the rules that you use are very important because it's very expensive to get that delineation done, and it's the first step in your permitting process.

    0:18:38.6 MC: So we could see... What we did see, and what I suspect we could see again, is that you start a delineation under one set of rules. Those rules are either invalidated by repeal in the Executive Branch or invalidated by litigation in the courts, and then you have to start your delineation over again with a new rule.

    0:19:01.7 MC: With the Trump rule, we saw delineations were done under the Obama rule, and then they... When the repeal happened, they were done under the 1987 rule, and then when the Trump rule came in, they had to be re-done under the Trump rule, and three delineations for one permit and the cost in expensive and the delay that goes with that can be very significant. I don't necessarily see an end to that problem of uncertainty in how we define "waters of the United States" any time soon.

    0:19:31.5 SC: And certainly, the irony there is the regulations are supposed to make it clearer for the regulated community. That's the lay of the land under federal law right now. As we mentioned, the law of the land right now is the Navigable Waters Protection Rule, so for wetland, it's a restricted jurisdiction under the Clean Water Act. They really have to be, for an adjacent wetland, connected to a traditionally flowing navigable water.

    0:19:58.3 SC: If they're not, if they're just isolated, under the current state of the law, no mention what happens under the next version, [chuckle] but under the current state of the law, that would not be a jurisdictional well under the federal law. But since we also have double regulation in California, under the Porter-Cologne Act, since you, Mary Lynn, are our Porter-Cologne guru, what are some of the biggest developments under state law as relates to wetlands?

    0:20:26.6 MC: Well, in California, for our California clients, the state law developments are actually much more important than the ongoing saga and definition and redefinition of "waters of the United States". In California, the State Water Resources Control Board adopted statewide regulations that would govern discharges of drudge and fill material.

    0:20:49.8 MC: These regulations govern those discharges whether the Water Board is taking an action on a 401 cert under Porter-Cologne, or whether they're taking the action under WDRs, discharges of drudge and fill material under Porter-Cologne, or both. And they often do both, because Porter-Cologne regulates waters of the state instead of waters of the United States.

    0:21:14.5 MC: The regulation of waters of the state is much broader than regulations of waters of the United States. We've talked a little bit about waters of the United States being governed by connection, whether that significant nexus or direct flow connection to traditional navigable waters. The definition under California law is entirely different and much broader. "Waters of the state", which are regulated by the water boards in California include all surface and ground water of the state. That's the definition. It's very broad.

    0:21:48.6 MC: No idea of traditional navigability, no ideas of flow. So much broader, encompasses waters of the United States, but then also encompasses a lot of other waters, like isolated waters that were determined by the Supreme Court not to be jurisdictional under the federal act, like the federal drainages, which the Trump rule excludes from jurisdiction. So, much broader requirement to get a state law permit under Porter-Cologne for discharges of dredge and fill to all waters of the state.

    0:22:23.0 MC: As I mentioned, that regulation became effective in May of 2020 and essentially establishes a new state level 494 permitting program for all kinds of discharges of dredge and fill to any waters of the state. It also defined in that regulation what wetland waters are. We think of wetlands as being marshes, but under the state definition of "wetland", a wetland doesn't have to have vegetation, as it does under federal definition. A wetland essentially is just any piece of land that's inundated with water regularly. So that is a bit broader in terms of definition.

    0:23:02.1 MC: It also includes constructed or artificial wetlands, unless six different tests are met, including that the wetland area has to be less than one acre, so it includes a lot of constructed and artificial wetlands that are excluded under the Federal Clean Water Act. New waters, the state regulation don't define, but also require permits for discharges of dredge and fill to any non-wetland water. What we call a "non-wetland water" would be a canal, a flood control channel, ditches, lakes, reservoirs, detention basins, ponds, streams. These types of things.

    0:23:42.9 MC: Now, broadly in California, WDRs and/or a 401 certification is required for any discharge to any of those waters in the state as broadly defined under these new regulations. It's really from the standpoint of what a development critical path would be compliant with the state law, is definitely more important in California projects.

    0:24:07.6 SC: I know when the "waters of the US" definition has changed over time, almost every time you've seen all of these cases pop up all over the United States. Given that this is such a significant change under California law to how waters of the state are regulated, have we seen that sort of, the same sprouting of litigation all over the place?

    0:24:29.2 MC: You know, we haven't. We did see in response to the adoption of the regulations themselves, we did see a case that was brought by the San Joaquin Tributaries Authority, that was brought in Sacramento Superior court as a trial court case, so it's not necessarily precedential. What we saw in that trial court case, it was an actual argument that the State Water Resources Control Board, under Porter-Cologne, did not have authority to regulate all discharges of dredge and fill to waters of the state.

    0:25:11.2 MC: The Court actually agreed with that premise and ruled that the State Water Board only had authority under Porter-Cologne to regulate discharges of dredge and fill to ocean waters and certain other waters of the state, but did not have regulatory authority to regulate discharges of dredge and fill broadly to all surface waters in every region. Instead, the court pointed out that that authority under Porter-Cologne was vested in regional water quality control boards.

    0:25:45.0 MC: The upshot of that case is that the regional water quality control boards do have the authority to regulate discharges of dredge and fill to all surface waters. The regional water quality control boards can implement those regulations or others to govern those discharges of dredge and fill and can demand WDRs, in other words, permits for those discharges, but the state water had limited authority to implement its regulations.

    0:26:11.3 MC: In response to that, the State Water Board does not appear to be appealing the ruling. Instead, they have planned to re-adopt these waters of the state regulations on April 6, 2022, and they are going to re-adopt those under a provision of Porter-Cologne that provides very clearly that the State Water Board has the authority to set state-wide policy with respect to water quality issues of concern in the state. Protection of wetlands is clearly something that falls within that purview.

    0:26:43.0 MC: They are going to re-adopt them under a different statute that does give them the authority to set a policy, but obviously, they want more than a policy here, they want to be able to enforce these regulations and issue permits, and so they have also proposed to re-adopt these regulations under a second statue in Porter-Cologne, which gives the State Water Board the authority to adopt what's called "water quality control requirements". Sounds a lot like a regulation, right?

    [chuckle]

    0:27:13.9 SC: A lot.

    0:27:13.9 MC: Yeah, so they're going to re-adopt them as water quality control requirements, again, pertaining to water quality policies, they're critical to the State of California. That will give them this broader regulatory authority they're looking for, and a new statute to cite as the authorization that would indicate that in fact this regulation is within their purview.

    0:27:42.5 MC: Interestingly, the new regulation that allows them to adopt water quality control requirements, also requires the State Water Board to consider the impacts of the proposed regulation on the ability for every person in California to be provided with housing. Another huge policy issue in our state.

    0:28:07.5 MC: Right, the availability of housing. In this hearing on April 6th, I anticipate that we will see the California Building Industry Association, the California Construction Industry Coalition for Water Quality, and other affordable housing groups, I would expect we would see them to make comments on the re-adoption of these regulations, and the costs that the regulations create for particularly residential development.

    0:28:35.0 MC: In the adoption of the waters of the state regulations hearings and in that public comment process, they presented a great deal of evidence about the increased cost over and above what it costs to get a section 404 permit to comply with these new state regulations, primarily the regulations are more stringent than the federal regulations.

    0:28:54.8 MC: There were a lot of costs that they documented, and I suspect they will bring those costs forward again and asked the State Water Board to reconsider them in considering whether to re-adopt the regulations. I don't necessarily think it's going to change the outcome, I think the State Water Board will re-adopt the regulations, that I do suspect that there will be a new effort to get them to consider the costs on particularly residential construction associated with complying with these regs.

    0:29:25.9 SC: Given all of that, what does the regulated community do right now? because you have these waters of the state regulations, and then you have the normal federal regulations, so if you need a federal permit and you might impact some wetland waters of the state, what you do right now?

    0:29:50.3 MC: Well, right now, you have to comply with the state waters of the state regulations, and I don't expect anything will change with that on April 6th. I anticipate that you will need to comply with these more stringent regulations. If you have both impacts to waters of the United States and impacts to waters of the state, I really recommend that you comply with these regulations via the 401-certification procedure. The Water Boards, however, can ask you to get separate WDRs, in which case you're getting two permits for essentially the same types of fill. One for waters of the US, one for waters to the state.

    0:30:31.1 MC: At any rate, whether you're doing it through a 401 cert or you're getting separate WDRs, you will need to comply with these more stringent regulations in terms of permitting and mitigating your impacts associated with discharges of dredge and fill. What does that mean as a practical level? The new state regulations are more stringent than federal requirements in several areas, and the regulated community will have to understand those new requirements.

    0:31:00.2 MC: The first area that this regulation is more stringent is with respect to mitigation required to support the issuance of a permit. Both state law and federal law require no net loss of aquatic features. That's interpreted differently at the state level and more stringently at the state level. These new regulations mandate that no net loss requires a mitigation floor of 1:1 in terms of either acreage or feet.

    0:31:30.0 MC: If you're going to impact, let's say a linear drainage. Let's say it's 15 feet long. Or let's say you're going to impact a linear drainage that is half an acre. In the past, and still under federal law, if that drainage had no particular water quality function or value, no habitat, no endangered species, you could replace the impacted area with a mitigation site that was smaller, maybe 14 linear feet or maybe a quarter of acre, that had much better water quality, habitat, ecological function and value, and that would be acceptable mitigation because you have aquatic resource lift in terms of function and value, even though you didn't have the same area.

    0:32:16.9 MC: That's no longer permitted in California. You must have the 1:1 acreage or linear feet, minimum. And then on top of that, you need to provide for your aquatic lift in California. That actually has not only impacts on development of infrastructure in private developments, where we see the most impact of that is actually on restoration projects.

    0:32:42.2 MC: Interestingly, I'm dealing with a restoration project now, where the goal of the project is to eliminate a recharge, ground water recharge pond that has over time become connected with and actually reducing the function of a stream. The goal is to rebuild the stream, make it function correctly and move this recharge pond offline and then improve water quality and habitat around the recharge pond.

    0:33:09.7 MC: Because it's a 1:1 issue, we can't, in this mitigation project, we can't actually count the rebuilding of the stream and get it to fully offset the amount of the pond that we have to take out to rebuild this drain bank. It's blocking what everybody agrees is a fantastic restoration project because we can't come up with the appropriate mitigation.

    0:33:32.2 MC: It's interesting, it's actually having a much bigger effect on restoration projects at the moment, even than development projects. But that's one example of more stringent requirements. We also see temporary impacts now, if they're greater than one year, they require 1:1 mitigation, they can no longer be self-mitigating. That's a fairly significant [0:33:53.3] ____ in mitigation.

    0:33:55.1 MC: And then we see a lot of requirements around justifying mitigation, so we have to show mitigation fits into the watershed by explaining a watershed management plan and where this mitigation site would sit. Developing a watershed mitigation plan is incredibly expensive and time-consuming because you have to deal with all the water resources in the whole watershed, and so that's creating difficulties in justifying the mitigation.

    0:34:22.9 MC: You also need to climate change assessment for justifying your mitigation. The climate change assessment has to say what will happen based on anticipated effects of climate change to the mitigation site over time, and nobody really knows how to do that analysis, so that's creating another hurdle in terms of more stringent requirements.

    0:34:43.5 SC: It sounds like a lot for any developer, whether it's a rehabilitation project or housing project, or even a public agency trying to build a public facility. It's a lot for anyone to bite off. Is there any effort to streamline or clarify how development projects are supposed to move through this process?

    0:35:06.2 MC: There are some efforts afoot, and the efforts are supported actually both by the resolution that the State Water Board adopted when they adapted the waters of the state regulations, they recognized that there would be more stringent requirements and that those requirements would need to be the subject of ongoing discussion and implementation guidance.

    0:35:30.7 MC: There was implementation guidance issued by the State Water Board in April of 2021, there are still a lot of questions after that implementation guidance, including questions about how to do watershed management plans, and another more stringent requirement, how to do 404-B1 alternatives analysis for your 401 cert.

    0:35:52.3 MC: The 404-B1 alternatives analysis is a requirement to come up with the least environmentally damaging practicable alternative, the LEDPA, which requires consideration of engineering design and how you can avoid and minimize impacts. That process is becoming very extended because now the State Water Board is exercising its authority to mandate new engineering changes and to choose a different LEDPA than the Army Corps of Engineers has chosen.

    0:36:21.6 MC: So that's another area where some work has begun to try and streamline that process and to move it to an earlier point in the planning process, more like the CEQA alternatives analysis and integrate it with that process in order to minimize the difficulties that come up with using a different LEDPA after you're already done with CEQA, after you've already analyzed all those alternatives.

    0:36:49.7 MC: So that's an area that industry groups are beginning to work with the State Water Board to try to address in terms of streamlining, identifying those watershed management plans. I try to identify and get those approved so that multiple projects can use them to justify their mitigation as an area on the list to address the State Water Board, and then developing a template climate change analysis that folks can rely on and use to justify their mitigation sites, is another area of streamlining.

    0:37:23.9 MC: The streamlining program got off to a pretty good start, and then of course we had COVID and we have furloughs at all the water boards. And they have, of course, water quality issues that they are considering, some related to drought, which we're currently in a new drought, some related to COVID. Leeping this as a priority is difficult in the current environment, but there is the opportunity to streamline these more stringent requirements and at least to provide better information to everybody about how to comply with them.

    0:37:56.3 MC: I would really suggest to our regulated clients that they keep an eye on that and participate in that effort in order to address these more stringent mandates.

    0:38:07.0 SC: Mary Lynn, thank you so much for joining me today. I know that issues concerning wetlands are really important to our clients and the regulated community, and I really appreciate you taking the time to provide some insight on the subject. And thank you to our listeners for joining us for this episode of Digging Into Land Use Law.

    0:38:24.5 SC: For additional information on this topic or other environment and land use matters, please visit our website at nossaman.com, and don't forget to subscribe to Digging Into Land Use Law wherever you listen to podcasts, so you don't miss an episode. Until next time.

    [music]

    0:38:42.0 S2: Digging Into Land Use Law is presented by Nossaman LLP and cannot be copied or rebroadcast without consent. Content reflects the personal views and opinions of the participants. The information provided in this podcast is for informational purposes only, is not intended as legal advice, and does not create an attorney-client relationship. Listeners should not actually solely upon this information without seeking professional legal counsel.

    [music]


Jump to Page

We use cookies on this website to improve functionality, enhance performance, analyze website traffic and to enable social media features. To learn more, please see our Privacy Policy and our Terms & Conditions for additional detail.