California Wetlands
California Wetlands:
Update on new state definition
and policy development
California Native Plant Society
Fall Conservation Symposium
September 10, 2011
Carol W. Witham
California Wetlands
Waters and Wetlands: Federal Laws
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1899: Rivers and Harbors Act
1912: Public Health Services Act
1924: Oil Pollution Act
1948: Water Pollution Control Act
1965: Water Quality Act
1972: Water Pollution Control Amendments
1977: Clean Water Act (CWA)
1987: Water Quality Act
California Wetlands
CWA Nexus to Plant Conservation
• 558 of 2258 plants (24.7%) currently listed in
the Online Inventory are associated with
wetland habitats…
– Bogs & fens (62)
– Meadows & seeps (316)
– Marsh & swamps (135)
– Playas (38)
– Vernal pools (97)
– Riparian (82)
California Wetlands
Basics of the Federal CWA
• Purpose is to limit pollutants to surface waters
– Requires permits for discharge, dredge and fill
– Applies to interstate, navigable waters and
associated wetlands
• Interstate broadly interpreted to apply to commerce
• Navigable and associated also broadly interpreted
– Broad exemptions for agricultural practices
• States must certify that permits do not violate
the state’s water quality control standards
California Wetlands
Legal Interpretation of the Federal CWA
• Lower court decisions all over the map on
interpretation of key terms
• Supreme Court decisions…
– 1985: Riverside Bayview Homes
• Upheld jurisdiction over adjacent wetlands
– 2001: Solid Waste Agency of North Cook County
(SWANCC)
• Rejected jurisdiction over isolated wetlands
– 2006: Rapanos
• Requires that a wetland have significant nexus to
navigable waters
California Wetlands
California Laws
• 1928: Amendments to the Constitution
• 1949: Dickey Water Pollution Act
• 1969: Porter-Cologne Water Quality Control Act
– State Water Resources Control Board has ultimate say
over state water quality policy
– Nine Regional Water Quality Control Boards issue
waste discharge requirements (WDRs), initiate
enforcement, and monitor local water quality
• Create basin plans to ensure reasonable protection of
beneficial uses and prevent nuisance
California Wetlands
Intersection of CWA and Porter-Cologne
• States have ultimate authority for
implementation of the CWA with respect
to water quality (Sections 401 & 402)
– The California Supreme Court held that the state
can impose restrictions more stringent than those
required under the CWA (City of Burbank 2005)
• States may assume administration of the
Section 404 permit program for wetlands
– Must develop a wetlands permit program similar
to the Federal program
California Wetlands
California Wetland Regulation
• 2003: Report on Regulatory Steps Needed
• 2004: Filling the Gaps Workplan
– Also beefed up waste discharge requirements
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2007: Scoping Meetings on Policy Alternatives
2008: SWRCB Resolution
2008-2011: Public and Stakeholders Meetings
2011: Notice of Preparation for DEIS
2011: Five Year Coordinated Work Plan
California Wetlands
Wetlands and Riparian Area Protection Policy
(WRAPP)
• Phase 1 – establish a policy to protect wetlands
from dredge and fill activities
– Develop a wetland definition
– Establish a regulatory mechanism based on Federal
permitting program
– Establish a standard monitoring and assessment
methodology
• Phase 2 – expand policy to protect wetlands from
other activities impacting water quality
• Phase 3 – expand policy to protect riparian areas
California Wetlands
Current Status of WRAPP
• Phase 1 in progress…
– Definition mimics Federal law
• Three parameter definition (hydrology, soils &
vegetation) based on the Arid West Supplement
– Permitting steps similar to Federal law
• LEDPA preference: 1) avoidance, 2) minimization and
then 3) mitigation with some exceptions
– California Rapid Assessment Method (CRAM)
monitoring methods developed
• Modules being developed for various wetland types
California Wetlands
Current Status of WRAPP (cont)
• Phase 1 in progress (cont)…
– NOP for DEIS issued in January 2011
• CNPS participated with a consortium of environmental
organizations to provide comments on the NOP
– Five Year Workplan issued in April 2011
• Joint SWRCB/DFG document that lays out
responsibilities for developing policy and
implementation
• Phase 2 on indefinite hold
• Phase 3 on indefinite hold
California Wetlands
Next Steps…
Questions?
References
• Wetland and Riparian Area Protection Policy
– www.swrcb.ca.gov/water_issues/programs/cwa401/wrapp.shtml
• State Assumption of Section 404 Permit Program
– www.epa.gov/owow/wetlands/facts/fact23.html