AB 463

Wetland permitting and mitigation

Under current law, there are two permitting procedures for discharging

dredged or fill material into a wetland depending on whether the wetland is subject

to federal jurisdiction. Under federal law, activities involving the discharge of

dredged or fill material into wetlands subject to federal jurisdiction (federal

wetlands) must comply with certain guidelines contained in regulations

promulgated by the U.S. Army Corps of Engineers (ACE). Wetlands that are exempt

from federal jurisdiction are those that are nonnavigable and that are isolated,

intrastate wetlands. Current state law regulates discharges in these wetlands

(nonfederal wetlands).

Current law makes a distinction between wetlands that are in, or that are in

proximity to, an area of special natural resource interest (ASNRI) wetlands and

those wetlands that are outside these areas. Current law defines ASNRI as being

an area that has significant ecological, cultural, aesthetic, educational, recreational,

or scientific value and specifically lists certain areas.

Under current law, a discharge into a federal or nonfederal wetland will be

authorized under an individual or general water quality certification only if the

discharge complies with all of the water quality standards that apply to wetlands.

These standards are promulgated as rules by the Department of Natural Resources

(DNR) and require that various functional values of wetlands be protected from

adverse impacts. These functional values include providing protection from

flooding, recharging groundwater, and providing habitat for wildlife.

Under current law, before ACE may issue a federal permit applicable to a

federal wetland, or authorize an activity pursuant to a general federal permit, DNR

must issue a water quality certification. For a nonfederal wetland, the discharge

must be authorized by a water quality certification issued by DNR but no federal

permit is required. For a nonfederal wetland, the discharge may be authorized by

an individual certification or a general certification. Under current law, DNR may

issue a general water quality certification for types of discharges that are similar in

nature and will cause minimal adverse environmental effects. Under current law,

DNR must issue general water quality certifications that are consistent with all of

the general permits issued under federal law.

Under rules promulgated by DNR, in order for DNR to issue an individual

wetland water quality certification DNR must first find that no practicable

alternative exists which would avoid causing adverse impacts to the wetland and

that all practicable measures will be taken to minimize the adverse impacts to the

functional value of the affected wetlands. DNR then considers any proposed

mitigation and various other factors to determine whether there will be an adverse

impact to wetland functional values or to water quality that is significant or other

environmental consequences that are significant. The factors used in this step of the