Comment Deadline Approaching on State Water Board Draft Policy on Isolated Wetlands

Water Law  

August 16, 2016

The State Water Resources Control Board (Water Board) has, at long last, issued the “final” version of the preliminary draft of its Procedures for Discharges of Dredged or Fill Materials to Waters of the State (“Preliminary Draft”), substantially modifying the Water Board permit process for discharges to “waters of the state.”  The Preliminary Draft, issued on June 17, 2016, provides:  (1) the Water Board’s proposed “wetland” definition, (2) wetland delineation procedures (adapted from the United States Army Corps of Engineers’ 1987 wetlands delineation manual), and (3) application procedures, including new State requirements for an alternatives analysis and compensatory mitigation.  Collectively, these requirements attempt to fill the gap in jurisdiction over isolated wetlands and fortify the State’s permitting program.

If the Preliminary Draft’s new procedures are implemented in their current form, they may have serious implications for the regulated community, by creating uncertainty over both the procedure for and substance of wetland delineations and jurisdictional determinations.  The due date for comments on the Preliminary Draft has been extended, with comments now due by August 18, 2016.