WATERS OF THE STATE

The commercial real estate industry, along with a broad coalition of other groups, have submitted a comment letter on the State Wetland Definition and Procedures for Discharges of Dredged or Fill Materials to Waters of the State, formerly known as the Wetland and Riparian Area Protection Policy, as there are significant concerns with how the procedures are drafted.  If you are interested in infrastructure improvements and economic development these proposed rules could place significant hurdles to achieving those goals.

As currently drafted, the Procedures will create unnecessary conflict by proposing a new wetland definition that differs from the definition that has been used by the U.S. Army Corps of Engineers (“Corps”) since 1977. This will result in features being classified as a wetland by the Water Board but as non-wetland waters by the Corps, leading to conflicting alternatives analysis determinations and mitigation requirements.

The Procedures will also set new regulatory requirements that will affect projects across the state — from large infrastructure projects to smaller projects necessary for the operations of many medium and small business owners, who are now complying with a multiplicity of new and costly water quality regulations.

Unless modified, the Procedures will slow to a crawl the U.S. Army Corps of Engineers’ streamlined Nationwide Permit (“NWP”) program. The thresholds under consideration are so low that, ironically, even small projects involving operations and maintenance improvements will be forced to prepare an alternatives analysis. We estimate that each year more than 200 projects that qualify for a Corps NWP will be subject to costly and time-consuming application requirements, forcing project sponsors to engage biologists, engineers, economists, and attorneys to identify, design, and evaluate a range of on- and offsite alternatives. Medium and small businesses and many local governments cannot afford these added costs. Improvements will not be undertaken, and good-paying jobs in disadvantaged rural areas lost.

Our coalition is asking the State Board – if it even determines it needs to act – to move forward with the adoption of a program that fills the regulatory gap by protecting non-federal waters of the state as if they were regulated by the Corps’ current procedures, including adopting a wetlands definition and delineation techniques that are identical to the well-established definition used by the Corps.  Alternately, if the Board does decide to act, comments that would make the program work better have been submitted.  We will keep you posted.

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