President Donald Trump’s administration gave California land developers and farmers a reason to cheer when the White House last month rolled back controversial regulations for wetlands imposed during the Obama presidency.
They may want to hold off on the celebration.
A powerful California water agency is poised to adopt its own regulations that could protect more of the state’s wetlands from being plowed, paved over or otherwise damaged. Environmental groups are pressuring the State Water Resources Control Board to push back against Trump’s decision and adopt a wetlands policy that’s even stricter than former President Barack Obama’s.
“The state board should be adopting a policy that is even more protective of California’s wetlands,” said Rachel Zwillinger, water policy adviser for Defenders of Wildlife. “This (proposed) policy is a critical opportunity for the state to step up and protect its own resources.”
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A fight over the proposed rules has been brewing for years and is about to come to a head. A year ago, a broad coalition of developers, homebuilders, farmers and other business groups submitted testimony against the regulations, saying they would create more red tape, higher costs and fewer rights for landowners. These organizations, including the California Building Industry Association and the state Farm Bureau, declined comment for this story because they’re reviewing a recently updated version of the water agency’s proposal.
Other property-rights advocates who’ve been studying the issue say the proposed wetlands rules could harm the state’s economy. “The impact may be particularly substantial for the agricultural industry and large-scale infrastructure projects in California that will almost certainly be subjected to additional permitting hoops and exposed to additional third-party litigation,” said Tom Boer, a San Francisco lawyer who represents businesses in environmental cases.
The issue stems from a once-obscure rule known as “Waters of the United States,” or WOTUS, a highly technical set of guidelines under which the U.S. government enforces the federal Clean Water Act to protect rivers, streams and certain other bodies of water.
The WOTUS rule, despite its complexities, is controversial. It has sparked a legal fight in Sacramento that’s being watched by farmers, environmentalists and others nationwide. A Central Valley farmer named John Duarte is fighting a $2.8 million fine imposed by the Obama administration over allegations that he damaged vernal pools by plowing a field in Tehama County without a permit, in violation of WOTUS.
Long before the Duarte case, though, the WOTUS rule – and which waters it protects – has been the subject of a tug of war. That’s a major reason why the state is prepared to step in with its own rule.
More than a decade ago, a pair of U.S. Supreme Court decisions weakened the federal rules by essentially limiting protections to “navigable waters,” their tributaries and adjacent wetlands. Environmentalists said the rules left a fair number of wetlands without protection, including many kinds of vernal pools that weren’t directly connected to major rivers.
Enter the Obama administration. In 2015 it expanded the definition of which waters would be protected, including a greater number of vernal pools. Environmentalists were thrilled, but farmers, developers and conservatives howled in protest. Last month the Trump administration began the formal process of rescinding Obama’s decision, saying the WOTUS rules need to be loosened in the name of economic growth.
Now California environmentalists want California to make a stand. Reacting primarily to the Supreme Court decisions, but with the Trump White House also in mind, the State Water Resources Control Board is drawing up a “Waters of the State” rule. That rule would protect a broad array of wetlands including certain small streams and creeks, and a greater share of California’s vernal pools.
Vernal pools are temporary ponds that provide critical habitat for plants and animals during rainy season but dry up in summer. Environmentalists say they’re especially important in California. Millions of acres of such wetland habitat has disappeared in California since the mid-1800s, including 95 percent of the Central Valley’s. Conservation groups say it’s critical to protect the remaining wetlands from development, in part because they’re vital to the birds that migrate along the Pacific Flyway and a host of other native plants and animals.
“Further losses (of vernal pools) are hugely problematic for the huge number of species that depend on the wetlands,” said Defenders of Wildlife’s Zwillinger.
The state water board already has broad authority under state law to protect wetlands, but often has deferred to regional water boards or the federal government. As the regulatory ground shifts in Washington, state officials say they want to be ready to step in depending on how far the Trump administration goes in loosening the rules. California’s proposed “Waters of the State” rule would clarify which wetlands would be protected.
“Current regulations have not been adequate to prevent losses in the quantity and quality of wetlands in California, where there have been especially profound historical losses of wetlands,” the proposed rule says.
The state board, after years of deliberation, is expected to finalize the rules as early as December. Environmentalists say the rule can’t come soon enough – and has taken on greater importance in the Trump era.
“The need to have the state rule is more pressing than ever,” said Michael Lynes, director of public policy for Audubon California. “There’s an increased urgency, for sure.”
Farm groups and property-rights advocates, however, said they’re concerned the state will go too far. Reed Hopper of the Pacific Legal Foundation, who is representing Duarte in the farm case, said he’s worried that the proposed rules could give the state considerably more power than the federal government.
“The state has a broader scope to regulate,” Hopper said.