By Vicky Boyd

The State Water Board plans to adopt a final draft of the “Waters of the State” in coming months that has a much broader reach and wetland definitions than the federal “Waters of the United States.” 

Calling it a huge issue, San Joaquin Farm Bureau Executive Director Bruce Blodgett said the state’s foray into regulating what it considers wetlands is “pretty scary stuff” and could potentially affect every Farm Bureau member. 

“They’re looking at requiring another permit for farmers,” Blodgett said. “It’s basically going to be a permit to farm. It’s ridiculous. There’s no justification, no benefit, just another cost to the producer.”

Danny Merkley, California Farm Bureau director of water resources, agreed.

“At the end of the day, what this is going to do is fly in the face of new Gov. Newsom’s commitment to streamlining permitting and it flies in the face of his other priority of building affordable housing,” Merkley said. “It will create a situation where nobody will know what they have to do, and it gives the Water Board the authority to require people to do a whole bunch of stuff that’s beyond cost-prohibitive.”

SJFB plans to submit comments on the proposal to the State Water Resources Control Board, Blodgett said.

Known officially as the “State Wetland Definition and Procedures for Discharges of Dredged or Fill Materials to Waters of the State,” the 43-page draft document defines wetlands within the state and spells out steps and mitigation measures needed to obtain discharge or fill permits. 

The state draft, in the works since July 2017, was made public in January – just weeks after the U.S. Environmental Protection Agency introduced its proposed WOTUS revisions designed to bring common sense to wetland definitions.

State Water Board members held two workshops on the proposal in January and are expected to discuss it at their regular February board meeting.

Merkley, as well as CFBF Senior Counsel Kari Fisher, are members of an ag-urban coalition working to revise the state proposal to make it livable.

The document, as it stands, is so poorly written that even land-use attorneys well-versed in the topic can’t make heads or tails of parts, he said. 

“It could include what you and I would call wetlands, but also stock ponds and stuff that’s not even wet – but in their world, it’s a wetland,” Merkley said.

The coalition has offered three different redline drafts to the board. Merkley said they’re not opposing the proposal in total but are offering suggestions about how the board should fix it. “Staff has summarily dismissed each one of those,” he said.

Brad Goehring, a Clements area winegrape grower and coalition member, said their main goals were rewriting three parts.

“What we’ve decided is if we can get those three things fixed, all of the remaining things don’t matter quite as much,” he said. 

Rewriting three key items

The first deals with the definition of wetlands. The Army Corps of Engineers, which regulates dredge and fill of wetlands on a federal level, uses three criteria: hydrology, hydric soils and hydrophytic vegetation. If anyone is missing, then it likely isn’t classified a wetland.

The state definition is much broader and only requires two of those criteria be met, said Goehring, also an SJFB board member. The ag-urban coalition favors a wetlands definition that mirrors the one used by the Army Corps.

The state’s proposed regulation of prior-converted cropland also needs to be pulled, he said. Under the proposal, exemptions for certified prior-converted cropland would no longer apply if the land changes to a non-agricultural use. 

Goehring said this could create financial hardships for producers who want to retire and sell their ground for a non-agricultural use, such as housing. Few buyers would be interested, knowing they would have to mitigate for supposed wetlands, he said.

The exemption also would no longer be valid should the prior-converted cropland remain out of an agricultural commodity for more than five years and the wetland characteristics return.

Many growers fallowed ground for several years during past droughts in the state. Should this definition be adopted, Blodgett said, farmers who were able to survive the drought could face new permitting requirements once they were able to replant.

Owners of prior-converted cropland currently in pasture also could be hamstrung if they wanted to react to changing markets and put in a row crop or permanent crop, Goehring said. Currently, grazing is not recognized as an exempt agricultural activity on prior-converted cropland by either the state or the federal government. 

Although the proposed revisions to WOTUS add it and haying to the list of recognized agricultural activities, the state’s proposal does not. The state needs to rectify the omissions by following the federal government revision, Goehring said.

“The reason why this is so important is the State Water Board will prevent conversion of one crop to another by doing this,” Goehring said. “It ignores market trends and farmers’ ability to remove a crop that’s not profitable and change to another crop.”

The state also needs to recognize without exception the Army Corps’ Section 404 exclusions to protect lands filled after 1985, Goehring said. Since 1972, the Army Corps and Congress have issued guidance letters to clarify parts of Section 404 of the Clean Water Act. In preparing its plan, Goehring said, the State Water Board cherry picked those letters and included only ones that favored its proposal. “Either choose all or none, but don’t cherry pick” he said.

Enforcing the Waters of the State would fall on the nine regional water quality control boards, none of which have the resources to even begin to address the regulations, he said.

The concerns raised by the ag-urban coalition haven’t gone unnoticed, and the California Department of Food and Agriculture is watching the situation closely, Goehring said. The coalition also is working with select legislators to explore other potential options.