California’s Proposed "Dredge and Fill" Program for Wetlands and Other Waters of the State
by Clark Morrison*
The Trump Administration’s rollback of wetland protections under the Clean Water Act is on a fast track. The President announced the rollback in his February 28 Presidential Executive Order on Restoring the Rule of Law, Federalism and Growth by Reviewing the "Waters of the United States Rule." The executive order signaled the Administration’s intent, now under way, to repeal the Obama Administration’s expansive assertion of federal jurisdiction over wetlands and other waters of the United Statesâas described in the Clean Water Rule: Definition of "Waters of the United States" (the "WOTUS Rule")1â with a very narrow WOTUS definition first articulated by Justice Scalia in Rapanos v. United States.2
The State of California, long concerned about a federal retreat from wetlands protection under Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers3 ("SWANCC"), had been working for years on a new regulatory program to fill the gap left by SWANCC (which excluded from federal jurisdiction certain isolated non-navigable bodies of water). Although the "SWANCC gap" is not particularly yawning, it provided an opportunity for the Stateâacting through the State Water Resources Control Board (the "State Board")âto step into wetland regulation in a primary role, rather than the subsidiary role it has historically played under Section 401 of the Clean Water Act. The Trump Administration’s actions have invited a much broader role for the State, as the redefined concept of WOTUS under President Trump’s executive orderâif elevated to regulationâwould leave vast areas of formerly-regulated wetlands entirely outside the ambit of the federal Clean Water Act.
The State Board has now amplified the scope of its wetlands rulemaking. Its revamped program, the proposed State Wetlands Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State (the "Dredge and Fill Procedures"), modifies the State Board’s earlier Wetland Riparian Area Protection Policy, and is designed to apply to all discharges of dredge and fill material to waters of the stateânot just wetlands. But the broad scope of the Dredge and Fill Procedures, which go beyond even the expansive Obama-era WOTUS Rule, sets the stage for potential conflict with existing federal regulations and for post-adoption challenges as the State and Regional Water Quality Control Board ("Regional Board") staff begin to implement the new program.