Wetland and Riparian Area Protection
The loss of wetlands in the United States has been dramatic since settlement began; but no state has had a larger percentage of wetland loss than California. Since the 1780s, approximately fifty-three percent of wetlands have been lost in the lower forty-eight (contiguous) states, with the highest percentages of loss in the agricultural states of Illinois, Indiana, Iowa, Kentucky, Missouri, and Ohio, each losing at least eighty percent of their wetlands. At the top of this troubling list is California, with approximately ninety-one percent of our historic wetland cover lost.
Wetlands and riparian areas cover only a small percentage of California, but they provide significant benefits including flood control, pollutant filtration, water supply and replenishment, recreation, and habitat for a diverse array of plants and animals. Even small wetlands provide valuable economic benefits to California.
The 1990s saw an increased awareness of agricultural impacts on both decreasing wetland acreage and overall environmental quality. Following several western states’ adoption of “no-net-loss” policies, such as the California Wetlands Conservation Policy, the U.S. Department of Agriculture reported an increase of wetlands on agricultural land in the contiguous states of 26,000 acres annually. Between 1998 and 2004, the Fish and Wildlife Service estimated a net gain in wetlands of 220,000 acres in the contiguous states, the first gain since the inception of their database in 1954.
Although gains have been made, wetlands are still fragile ecosystems, and highly reliant on well-developed and thoughtful land use policies that value the environmental and recreational benefits these complex systems provide.
The Federal Government’s Role
Traditionally, the federal government enjoyed broad authority over wetlands under the Clean Water Act. However, federal authority over the nation’s wetlands have been restricted by a spate of Supreme Court decisions. Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers and the consolidated cases Rapanos v. United States and Carabell v. United States directly limited the jurisdiction of the Clean Water Act over wetland and riparian areas by restricting the definition of “waters of the United States.”
Jointly, these decisions have removed thousands of square miles of traditionally defined “wetlands” from federal protection and necessitate the use of state regulations to protect vital wetland resources from exploitation and degradation. This newly created regulatory gap in wetland protection has had varying impacts nationwide depending on the state regulations in place since SWANCC was decided in 2001. Some states have responded to the regulatory gap by reviewing their existing regulations and returning wetland regulation to the pre-SWANCC and pre-Rapanos levels via state regulations.
California’s Role in Protecting Wetlands
In 1993, Governor Pete Wilson signed Executive Order W-59-93, creating the State Wetland Conservation Policy (SWCP), which aimed to “ensure no overall net loss and achieve a long-term net gain in the quantity, quality, and permanence of wetlands acreage and values in California in a manner that fosters creativity, stewardship, and respect for private property.” At the time, the SWCP was bolstered by the traditional enforcement of the Clean Water Act pertaining to wetlands. However, as federal jurisdiction retreated, California faced the challenge of implementing a statewide policy without the tools it had previously utilized to enforce it.
In response to SWANCC and Rapanos, the California Environmental Protection Agency asked the State Water Resources Control Board to initiate a workplan to protect the state’s wetlands no longer protected under the federal Clean Water Act. These two Supreme Court decisions highlighted the fact that California did not have a statewide definition for what constituted a “wetland.” The Workplan recommended a “standard metric to help determine compensatory mitigation requirements and compliance with the ‘no net loss’ policy.” The Workplan also recommended the adoption of a statewide policy “at least as protective as the federal requirements” to immediately address the “gap” in environmental protection. Adopting a statewide policy equal to the federal requirements would, in effect, return California to the level of wetland protection enjoyed before SWANCC and Rapanos.
In 2008, the State Water Resources Control Board adopted Resolution No. 2008-0026. This resolution gave the Wetland Policy Development Team directions on how to develop a statewide policy to protect wetland and riparian areas. Part of the Team’s mission is to draft a definition for California’s wetlands and other aquatic areas, accounting for differences in climate, topography, and geography. This task would provide the state with a definition recognizing a degree of regional and seasonal wetland variation uncommon in other areas of the United States.
An independent Technical Advisory Team (TAT) was created to oversee the technical issues behind the new Wetland and Riparian Area Protection Policy. The TAT has been charged with recommending a wetland definition and standardized methods of wetland delineation, mapping, and classification that are applicable statewide. On September 8, 2008, Orange County Coastkeeper submitted a comment letter encouraging the adoption of a comprehensive definition, which can be read here. On June 25, 2009, the TAT released their proposed wetland definition:
An area is wetland if, under normal circumstances, it (1) is saturated by ground water or inundated by shallow surface water for a duration sufficient to cause anaerobic conditions within the upper substrate; (2) exhibits hydric substrate conditions indicative of such hydrology, and (3) either lacks vegetation or the vegetation is dominated by hydrophytes.
According to the TAT’s release, this proposed definition meets the criteria established developed by the TAT for a California wetland definition and reflects the current scientific understanding of the formation and functioning of wetlands. Additional technical recommendations by the TAT regarding wetland mapping, classification, delineation, and monitoring will be consistent with the aforementioned definition absent modification.
California’s process to restore traditional protections for state wetlands is in development and susceptible to the influence of special interests interested in weakening statewide protections. Coastkeeper will continue to monitor this issue, and is committed to working with other organizations to ensure the adoption of a comprehensive wetland definition that truly encompasses the wide variety of wetlands found in California.
2010 State of the State’s Wetlands Report
In the fall of 2010, the California Natural Resources Agency released their second ten-year review of the health and progress made in acquiring, restoring, and protecting the state’s wetlands in a document titled State of the State’s Wetlands. The Agency’s exhaustive wetland review identified “significant stressors” to the health of wetlands in general with declining health and function of salt marshes statewide due to increased urbanization. The salt marshes in the South Coast region, home to Orange County, received the fewest acreage of salt marshes rated as having “very good health” and the only region of the state with salt marshes rated in “poor health.”
The report concludes by recognizing significant progress in identifying, acquiring, restoring, and enhancing wetlands, but the goal of “no net loss” of California’s wetlands is far from being achieved. The Agency recommends the state establish a coordinated mechanism to standardize wetland monitoring and assessment procedures; adopt a formal approach for wetland identification, mapping, and classification; provide common tools and approaches for wetland management; share wetland and riparian data and information with the public; consider long-term wetland costs in future bond measures; support the use of wetlands to sequester carbon; and increase state support for wetland partnerships and coordination with agricultural stakeholders.
- Post Rapanos Caselaw on “Waters of the United States” (PDF)
- Legal Memorandum – January 2003 (PDF)
- The Clean Water Act Jurisdictional Handbook – ELI 2007 Edition
- U.S. E.P.A’s definition of “Waters of the United States.”
- Types of Wetlands
- California Wetlands Portal
- Southern California Wetlands Recovery Project – Orange County Task Force
- Functions and Values of Wetlands
- Laws, Regulations, and Guidance on Wetlands