With the scope of federal jurisdiction over wetlands curtailed by the U.S. Supreme Court, the California State Water Resources Control Board has begun to step into the jurisdictional void. On Jan. 28, 2012, the state board released a revised Draft Wetland Area Protection Policy that would apply state jurisdiction to the full extent of its statutory authorization for the first time. The draft policy would establish a regulatory definition of wetlands, methods for delineating such wetlands, and permitting procedures for authorizing dredge and fill discharges to California waters. If finalized, the draft policy may result in requiring many more activities to obtain permits to discharge as well as create new and different permitting obstacles.

Genesis

Pursuant to a 2008 resolution, the state board is rolling out a three-phase Wetland and Riparian Area Protection Policy. The draft policy would be the first phase of this effort. Previously, the state board generally relied on the process for permitting dredge and fill discharges established under §404 of the federal Clean Water Act. However, the Supreme Court’s decisions to limit jurisdiction in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers in 2001 and Rapanos v. United States in 2006 curtailed the reach of the federal §404 process. As a result, the state board and the Regional Water Quality Control Boards did not have a process for permitting discharges to the full extent authorized under state law.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]