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California Wetlands: Update on new state definition and policy development California Native Plant Society Fall Conservation Symposium September 10, 2011.

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Presentation on theme: "California Wetlands: Update on new state definition and policy development California Native Plant Society Fall Conservation Symposium September 10, 2011."— Presentation transcript:

1 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

2 Waters and Wetlands: Federal Laws 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

3 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

4 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

5 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

6 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

7 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

8 California Wetland Regulation 2003: Report on Regulatory Steps Needed 2004: Filling the Gaps Workplan – Also beefed up waste discharge requirements 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

9 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

10 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

11 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

12 Next Steps… Questions? References Wetland and Riparian Area Protection Policy – www.swrcb.ca.gov/water_issues/programs/cwa401/wrapp.shtml 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 www.epa.gov/owow/wetlands/facts/fact23.html California Wetlands


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