The State Water Resources Control Board’s Back-Door Land Grab
The California Water Alliance, a statewide, non-profit, water-policy organization, submitted public comments in response to the State Water Resources Control Board’s rule making process for Clean Water Act Section 401 – Certification and Wetlands Program, “STATE WETLAND DEFINITION AND PROCEDURES FOR DISCHARGES OF DREDGED OR FILL MATERIAL TO WATERS OF THE STATE” redefining “wetlands” under state law, substantially expanding SWRCB jurisdiction. CalWA Executive Director, Aubrey Bettencourt issued the following statement in response:
“The State Water Resource Control Board’s proposal to redefine “wetlands,” self expands the Board’s own authority, has unprecedented repercussions for water and land management. Mimicking the profound legal flaws of Waters of the United States, the Board’s proposal raises critical questions regarding its authority, jurisdiction, inadequate justification and rationale behind the proposal, resulting in the unintended negative ecological and economic consequences of such a substantial overreach.
“Without distinction or exception, the Board’s definition includes as wetlands, ‘An area is wetland if, under normal circumstances,…the area lacks vegetation.’ By that overly broad definition, the entire hundreds-of-miles-long crest of the Sierra-Cascades mountain ranges above tree line would qualify as wetlands, as would virtually all the desert lands of the state, encompassing millions of acres of non-wetlands regulatory area converted into wetlands. So would fallow agricultural fields, even graded and paved lands. Developers preparing sites for residential or commercial structures would, by virtue of their activities, convert non-wetlands into wetlands simply through earthmoving and grading operations necessary for construction.
“Even if the Board’s proposed definition could pass constitutional muster or be properly justified, such overreach and incursion of the Board’s authority into every aspect of public life and economic activity is simply breathtaking, inappropriate and unwarranted.
“While ‘wetlands’ are by nature inclusive of waters of the state, there’s no constitutional or legislative grant of authority that justifies the Board’s new definition of “wetlands” to make the term inclusive of lands that are permanently or ephemerally dry, those covered in vegetation or bare of such vegetation, or those surfaced in or without a soil covering, provided they do not already fall within the scope of the existing, preemptive and broadly recognized federal wetlands definition.
“The Board’s claim that, ‘There is no single accepted definition of wetlands at the state level’ ignores the presence of an established federal definition of wetlands promulgated by both Congress in the CWA and by the U.S. Environmental Protection Agency. Numerous court precedents back both preemptive federal law and regulatory interpretation in its preferred status over state regulations, long accepted by every other U.S. state as the proper legal definition of ‘wetlands’ for regulatory purposes. Interpretation by a state regulator beyond Congress’s language is therefore unconstitutional. While the state may reasonably extend protections through regulatory acts to lands Congress has declared wetlands, it cannot expand Congress’s definition of ‘wetlands’ to include new lands not previously protected under the CWA law.
“Creating a new standard through regulatory definition divorced from authorizing legislation invites long, costly and uncertain litigation of California’s definition and the Board’s authority to legislate through administrative regulatory processes rather than through legislation. Resulting delays and discrepancies that will emerge as a result of court action in response to the Board’s proposal are in direct conflict with the Board’s intent as it will undoubtedly impede and delay necessary actions necessary to protect critical wetlands and waterways.”
Click here for the full letter submitted to the State Water Resources Control Board during open public comment period. The State Water Resources Control Board is set to decide on the proposed rule in December 2017.