Californians have long valued our last remaining wetlands, which represent less than 10 percent of our once-rich natural endowment. In 1993, Republican governor Pete Wilson issued an executive order declaring a state policy not only of “no net loss,” but of long-term net gain, in the quality and quantity of wetlands. Yet 25 years later, protection of these special places remains at risk because the state has failed to create an effective wetlands protection program.
If California could rely on federal law, we wouldn’t need our own program. In 1993, it looked like the federal Clean Water Act might do the job. It is supposed to protect the physical, chemical and biological integrity of the nation’s waters, including its wetlands. It requires that landowners wishing to fill wetlands obtain permits from the United States Army Corps of Engineers. Permits can only be granted if the applicant will minimize environmental harm and compensate for any unavoidable harms.
But relying on federal regulators to protect California’s wetlands has long been problematic. One problem is the lack of enthusiasm federal regulators have long displayed. The Corps has a history of being overly friendly to development. The U.S. Environmental Protection Agency is supposed to be a backstop, with the authority to veto any permit it finds will cause unacceptable adverse impacts. But the EPA has vetoed a grand total of 13 permits, and only two since 1990.
There’s an even more serious problem with federal oversight. The Clean Water Act covers only “waters of the United States.” A 1985 Supreme Court decision suggested that it covered any waters, including wetlands that the federal government had the constitutional power to regulate. That meant wetlands were covered if their use or destruction might affect interstate commerce by, for instance, attracting tourists across state lines or harboring migratory birds.
In 2001, however, the Supreme Court narrowed that interpretation. In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers the court held that at least some “isolated” waters not connected to traditionally navigable waterways were beyond the reach of the Clean Water Act. The decision left the Act’s precise scope far from clear.
The court had an opportunity to clarify in 2006, but its decision in Rapanos v. U.S. only sowed more confusion. The four most conservative justices, led by Justice Scalia, thought the Clean Water Act reached only “relatively permanent, standing or continuously flowing bodies of water.” The four most liberal thought the court should defer to the EPA’s more generous interpretation. Justice Kennedy cast the deciding vote; he read the Act as covering any waters with a “significant nexus” to navigable waters. After developing a large body of scientific evidence supporting the importance of seemingly isolated waters to the integrity of navigable waters, the Obama administration codified the “significant nexus” test in its Clean Water Rule.
That rule, however, is on hold pending resolution of legal challenges. Donald Trump’s EPA is openly hostile to the Clean Water Rule. It has announced that it is developing a new one in response to a Trump executive order that urges adoption of a much narrower test. The EPA is widely expected to propose a rule that attempts to restrict federal jurisdiction to “relatively permanent” waterways and wetlands with a continuous surface connection to such waterways. Justice Kennedy might have acted as a check on the administration’s plans to narrow federal jurisdiction, but he has now announced his retirement.
California’s wetlands are at especially high risk if the EPA issues, and the courts uphold, a narrow definition of federal jurisdiction. Because of our climate and soils, a high proportion of California’s wetlands are seasonal or, like vernal pools, seemingly isolated. These wetlands are important resources. They support unique plants and wildlife, provide natural flood control and help protect the quality of our drinking water.
The state can protect its wetlands, even if federal authorities decline to do so. The State Water Resources Control Board has the authority under state law to limit wetlands destruction, but has never effectively implemented that authority. It has spent more than 15 years developing a wetlands protection program, which is finally in draft form. It’s past time to finish that work.
California should take protection of its wetlands into its own hands. The state can, and should, implement Wilson’s policy of increasing the quantity and quality of wetlands. It can’t do so by relying on a federal administration interested only in promoting development. It needs a state program that ensures a close look before any wetlands are filled, and effective mitigation of impacts that cannot be avoided.