In its first act to shield California from the Trump administration’s repeal of regulations, the state’s water board has prepared its own rules protecting wetlands and other waters.
The proposed new rules, scheduled for a vote by the board this summer, could insulate the state from President Donald Trump’s executive order to roll back the reach of the Clean Water Act. That rollback would strip federal protection from seasonal streambeds, isolated pools and other transitory wetlands, exposing them to damage, pollution or destruction from housing developments, energy companies and farms.
“When you look at it from a historical perspective, California has lost the vast majority of the wetland resources,” said planner Paul Hann, who oversees the State Water Resources Control Board’s wetlands protection program. “We want to capture the rich diversity of wetlands across the state. These resources play a big role in improving our water quality and providing a valuable benefit in terms of flood protection, wildlife habitat and recreation.”
Over the past two centuries, California has lost roughly 90 percent of its wetlands, leaving 2.9 million acres, according to the California Natural Resources Agency. These remaining wetlands support more species of plants and animals than any other habitat, including an estimated 41 percent of California’s rare and endangered species.
Stepping in to protect its wetlands “is a prime example of a state exerting its right to protect itself from federal rollbacks,” said attorney Rachel Zwillinger, a water policy adviser for Defenders of Wildlife. “California is showing the type of state leadership that our system of cooperative federalism envisions.”
What’s at stake
Winter brings dormancy and frozen earth to much of the country. But on the border of Marin and Sonoma counties, about 40 miles north of San Francisco, hundreds of creeks and lakes are springing to life. Birds swoop in from the north, steelhead and salmon edge their way upstream, and newts and pond turtles emerge in waterways fed by rain.
“The end of the summer is such a terrible time when it’s dry and dusty and the earth is parched. When it starts to rain, it’s like heaven,” said Sally Gale, a fifth-generation rancher in Petaluma who is president of the Marin Resource Conservation District. “The earth smells so rich and fertile. In a couple of days, you see a sprinkling of green across the pasture. The network of rivulets and wetlands looks like veins on a leaf.”
“The land comes back to life. It’s magic,” Gale said.
These wetlands are an example of what’s at stake in the state’s effort to protect what could be left vulnerable by the Trump administration’s plan to roll back the federal rule and redefine wetlands.
In California, Nevada, Colorado, Utah, Arizona and New Mexico, the vast majority of streams flow only in response to rainfall, according to U.S. Geological Survey data cited by the U.S. Environmental Protection Agency.
“The West is different from the rest of the country,” said Dave Shuford, senior biologist at the Petaluma-based nonprofit Point Blue Conservation Science. “The ecosystems out here are very dynamic. Year to year, they change depending on rainfall.
“It’s boom or bust for species,” he added. “If birds, amphibians and reptiles don’t have these places to go, they’ll have a hard time breeding.”
In a drought year, the creeks hold no water. In a wet year, they catch the rain, and their vegetation filters out pollutants before they can move via creeks and rivers toward the ocean. The pools recharge groundwater, slow flooding, stop erosion and provide fresh water for flora and fauna.
“If you add up all of the small spots, it’s a big resource,” Shuford said. “You have a bunch of little places that support huge numbers of birds.”
Like a scene out of the Old West, Chileno Valley Road in Petaluma winds through coast live oaks and bay laurels before the landscape opens to once-straw-colored hills now turned bright green. Hidden in the hills, formerly dry washes and creeks surge with rainwater. Eventually, the flows make their way to Tomales Bay, one of the most pristine bays on the West Coast, and then on to the ocean.
Along the winding road, a handsome Victorian Italianate house built in the 1880s marks the Chileno Valley Ranch, where Gale and her husband, Mike, raise grass-fed beef cattle and lambs and grow apple trees on unirrigated pastureland dependent on rain.
Behind the house, Chileno Creek began to trickle after a handful of November rains. Blue herons and white egrets searched for food. As winter rain pelts the watershed, the creek rushes. In time, it can fill to 150 feet wide and overflow onto the pastures. Steelhead will arrive, and later in the winter, red-legged frogs and pond turtles. Family and friends have counted more than 100 species of migratory songbirds, many of which stay to breed, as well as muskrats, raccoons, coyotes, foxes and bobcats.
For decades, many builders, growers, ranchers, energy and mining companies and other industries have lobbied federal lawmakers to limit their obligations to preserve wetlands under the Clean Water Act.
Shortly after taking office, Trump told a gathering of farmers and homebuilders that the EPA had “truly run amok” by saving “nearly every puddle or every ditch.” He told EPA Administrator Scott Pruitt to throw out the Obama administration rule that protects seasonal streams and small isolated ponds and shrink the reach of the law by narrowing the definition of “waters of the United States.”
Pruitt has made clear where he stands: As Oklahoma’s attorney general, Pruitt sued the EPA in 2015 to overturn the wetlands rule. As administrator, he appeared in an August video for the National Cattlemen’s Beef Association, urging ranchers to send him public comments supporting its repeal. The Government Accountability Office is investigating this as a possible violation of rules forbidding lobbying by government officials.
In June, Pruitt started the repeal, hoping to fast-track it. But it’s been slowed by regulatory obstacles. Under the latest schedule, he plans to rescind the rule by April and propose a new one by May.
Trump directed Pruitt to incorporate a definition, put forth by Supreme Court Justice Antonin Scalia in 2006, that defines protected bodies as relatively permanent and continuously connected by surface water to navigable bays, rivers or lakes.
If Pruitt incorporates that definition, it could endanger the drinking water supply of more than 117 million Americans. According to a 2009 EPA analysis, 58 percent of streams that supply public drinking water systems are intermittent or ephemeral. Based on the National Wetlands Inventory, the EPA assessed that at least 20 million acres of vernal pools, potholes, salt flats, creeks and other isolated wetlands would be put at risk.
If the rule “is rolled back, many of our waterways may lose critical protections,” California Attorney General Xavier Becerra, who has joined seven other states and Washington, D.C., in objecting to the repeal of the Obama rule, said in a statement. “The California Department of Justice refuses to stand idly by and let that happen.”
California prepares to be rollback ready
For more than a decade, the California water board has been working with scientists, holding public meetings and consulting with landowners and businesses to develop new dredge-and-fill regulations to enforce the state’s landmark Porter-Cologne Act, adopted in 1969. A key piece is providing a new wetland definition protective of the state’s intricate network of water bodies.
In mid-2016, before Trump was elected, the board staff unveiled its proposal, defining which characteristics qualify as a protected wetland and laying out provisions that are more protective to a wide array of water bodies than the current federal rule. For the first time, all the regional boards would enforce the same regulations when landowners and others seek government permission to discharge into or disturb wetlands. If enacted, the state’s directive would be first to avoid deterioration, then minimize losses and, if loss is necessary, fully replace them.
“We’re trying to balance procedural efficiency with environmental protection,” said Hann, the board’s wetlands protection program head.
Under narrower federal rules, businesses might be able to plow over or drain a seasonal pool or tributary, while under the state rules, it would be considered a protected wetland that could not be disturbed without investigation and permits.
In urging Trump to revoke the Obama administration rule, the American Farm Bureau Federation, the National Association of Home Builders, energy companies and other business groups argued that states should control their own waters. Now that California is stepping in to take control, these same groups are arguing that the state’s proposed rules are duplicative and contradict federal rules.
“Why should we have dueling processes?“ said Kari Fisher, a lawyer for the California Farm Bureau Federation. “That’s very expensive. You have situations where the state and federal governments can be at odds because they’re using different definitions and reaching different conclusions, for example, on mitigations. You have all of these conflicting issues that would arise.”
California already has led the way in challenging the Trump administration’s proposed border wall, cuts to health care funding and the plan to end the Deferred Action for Childhood Arrivals or “Dreamer” program for young immigrants living in the country illegally. But this would be its first official rule that would stop a Trump rollback from affecting California.
Richard Frank, a former state chief deputy attorney general who now directs the California Environmental Law and Policy Center at the UC Davis School of Law, predicts that some states will follow California’s lead in adopting their own wetlands rules, while others will be content with the federal rollback.
“This is the environmentally strongest water board I’ve been aware of in the 40 years I’ve been following California activities closely,” Frank said.