The state of California is working on a new regulatory program to oversee protection of wetlands and other ephemeral water bodies, such as seasonal streams. It comes in response to the Trump administration’s plan to roll back federal protection of such waters, which are critical for wildlife habitat, flood protection, groundwater recharge and water quality.

Water Deeply explored the state’s proposal in detail in an article published this week. But what would this broad new California regulatory program mean to the water industry and developers in the state?

A number of industry experts convened to discuss this very question at last year’s conference of the Association of California Water Agencies. Below are highlights from that presentation, condensed from a longer transcript originally published by MavensNotebook.com. It is republished here with permission.

It’s a Much Broader New Permitting Program

The federal Clean Water Act gives details on how to delineate wetlands in the western United States, said Mary Lynn Coffee, a partner at the law firm Nossaman LLP in Irvine, Calif., who specializes in the legal matters surrounding wetlands. It says that if an area has wetland hydrology for a certain number of days, and vegetation that’s associated with hydric soils and wetland conditions, then it’s a wetland, and it only has to have that for a period of time due to the arid nature of our climate, which is growing more arid as climate change progresses.

“What these regulations do is change that definition,” Coffee said. “It no longer requires hydrology and soils and vegetation; it now requires hydrology or soils but not both, and it can be vegetated or non-vegetated. So there are really only two tests: Does it have either soils or hydrology, or vegetation or no-vegetation? Because of that, it’s a much broader definition of wetland than what is used under the Clean Water Act. It’s also creating a great deal of confusion among consultants with respect to how to delineate those things, and should this go forward, there will have to be a whole new delineation manual that is promulgated.”

The scope of waters of the state is broad enough to include all kinds of artificial or constructed wetlands, she said, and these can be canals that have riparian vegetation associated with them, percolation ponds, constructed treatment wetlands and other things that agencies have encouraged over the years due to their multibenefit nature.

Groundwater Recharge Basins May Become Regulated

Daniel Cozad, general manager of the San Bernardino Water Conservation District, described how his district diverts water from Mill Creek into 48 spreading basins to recharge groundwater. Those basins require regular maintenance to ensure water can readily filter through the sandy soil into the aquifer beneath. The state’s new regulations, he fears, will require extensive and costly new permits every time basin maintenance is required. He’s hoping the state carves out an exemption for such activities.

“All of those basins require some management over time – to take silt out, to recontour them. All of those things would require a kind of unknown permit,” Cozad said. “We put 1 million acre-feet of water in the ground fairly cheaply and effectively. We think that’s what the state board wants us to be doing and what they want more people to be doing. So we need to figure out how to give these types of facilities the ability to do that without having to come and spend a lot of time fixing a problem that isn’t really a problem.”

A Future With Two Sets of Rules?

Farmers are concerned they’ll have to get permits from both the state and federal government once California’s new regulations are approved, said Phil Williams, general counsel for Westlands Water District in California’s Central Valley, the largest irrigation district in the nation.

“What’s at stake is not only a significant amount of permitting requirements and making sure that you’re following through with those, but also the complexity of complying with those analyses and recognizing our responsibility as public stewards to ensure that we actually are complying,” he said.

Farmers labor in the medium of soil and water, and Williams said regulating the farmers in this way is much like regulating a painter who applies paint to canvas. But he acknowledged that in the Central Valley, preserving wetlands is a concern and a legitimate one. If or when the rules pass, we’re going to have to master those rules, he said.

“I think there are better ways to go about doing it, but there may come a time where this is the world that we’re looking at,” he said. “I want my government to work, and I don’t care if its local government or state government. I expect leaders at all levels to interact effectively and efficiently to advance solutions that work.”