AB 2875: Wetlands: state policy.
- Session Year: 2023-2024
- House: Assembly
- Latest Version Date: 2024-09-25
Current Status:
Passed
(2024-09-25: Chaptered by Secretary of State - Chapter 579, Statutes of 2024.)
Introduced
In Committee
First Chamber
In Committee
Second Chamber
Enacted
Existing law, the Keene-Nejedly California Wetlands Preservation Act, requires the Natural Resources Agency to prepare a plan for the acquisition, protection, preservation, restoration, and enhancement of wetlands, including funding requirements and the priority status of specific proposed wetlands projects. By Executive Order No. W-59-93, former Governor Pete Wilson declared it to be the policy of the state that its Comprehensive Wetlands Policy rests on three primary objectives, including the objective of ensuring no overall net loss and long-term net gain in the quantity, quality, and permanence of wetlands acreage and values, as provided.
This bill would declare that it is the policy of the state to ensure no net loss and long-term gain in the quantity, quality, and permanence of wetlands acreage and values in California. The bill would make related legislative findings and declarations.
Existing law, the Keene-Nejedly California Wetlands Preservation Act, requires the Natural Resources Agency to prepare a plan for the acquisition, protection, preservation, restoration, and enhancement of wetlands, including funding requirements and the priority status of specific proposed wetlands projects. By Executive Order No. W-59-93, former Governor Pete Wilson declared it to be the policy of the state that its Comprehensive Wetlands Policy rests on three primary objectives, including the objective of ensuring no overall net loss and long-term net gain in the quantity, quality, and permanence of wetlands acreage and values, as provided.
This bill would declare that it is the policy of the state to ensure no net loss and long-term gain in the quantity, quality, and permanence of wetlands acreage and values in California. The bill would make related legislative findings and declarations.
Existing law, the Keene-Nejedly California Wetlands Preservation Act, requires the Natural Resources Agency to prepare a plan for the acquisition, protection, preservation, restoration, and enhancement of wetlands, including funding requirements and the priority status of specific proposed wetlands projects. By Executive Order No. W-59-93, former Governor Pete Wilson declared it to be the policy of the state that its Comprehensive Wetlands Policy rests on three primary objectives, including the objective of ensuring no overall net loss and long-term net gain in the quantity, quality, and permanence of wetlands acreage and values, as provided.
This bill would declare that it is the policy of the state to ensure no net loss and long-term gain in the quantity, quality, and permanence of wetlands acreage and values in California. The bill would make related legislative findings and declarations.
Existing law, the Keene-Nejedly California Wetlands Preservation Act, requires the Natural Resources Agency to prepare a plan for the acquisition, protection, preservation, restoration, and enhancement of wetlands, including funding requirements and the priority status of specific proposed wetlands projects. By Executive Order No. W-59-93, former Governor Pete Wilson declared it to be the policy of the state that its Comprehensive Wetlands Policy rests on three primary objectives, including the objective of ensuring no overall net loss and long-term net gain in the quantity, quality, and permanence of wetlands acreage and values, as provided.
This bill would declare that it is the policy of the state to ensure no net loss and long-term gain in the quantity, quality, and permanence of wetlands acreage and values in California. The bill would make related legislative findings and declarations.
Existing law, the Keene-Nejedly California Wetlands Preservation Act, requires the Natural Resources Agency to prepare a plan for the acquisition, protection, preservation, restoration, and enhancement of wetlands, including funding requirements and the priority status of specific proposed wetlands projects. By Executive Order No. W-59-93, former Governor Pete Wilson declared it to be the policy of the state that its Comprehensive Wetlands Policy rests on three primary objectives, including the objective of ensuring no overall net loss and long-term net gain in the quantity, quality, and permanence of wetlands acreage and values, as provided.
This bill would declare that it is the policy of the state to ensure no net loss and long-term gain in the quantity, quality, and permanence of wetlands acreage and values in California. The bill would make related legislative findings and declarations.
The Legislature finds and declares the following:
(a)Californias wetland resources provide an abundance of benefits for humans and the environment, including, but not limited to, flood risk reduction, filtration of water pollutants, surface and groundwater supplies, shoreline protection, erosion reduction, wildlife habitat, open space, and public recreational opportunities. Wetlands are an important habitat for migratory waterfowl of the Pacific Flyway, endangered species, and many other resident wildlife and fish populations.
(b)Scientists have determined that though small in area, wetlands are carbon sinks and wetland drainage leads to significant carbon and greenhouse gas emissions as stored carbon is oxidized. Management and restoration of wetlands provide many opportunities to restore carbon and reduce greenhouse gas emissions.
(c)Historical filling and development projects have reduced California wetlands to a mere 10 percent of their original extent. The loss of coastal wetlands is even more alarming with 95 percent of the formerly abundant lagoons and marshes along Californias 1,100-mile coastline having been destroyed.
(d)In 1972, Congress enacted the Clean Water Act, which included a program designed to preserve the nations dwindling wetlands. In recent decades, litigation over the extent of federal authority to protect wetlands and federal regulators failure to delineate clearly that authority has combined to threaten the nations few remnant wetlands.
(e)The United States Supreme Court issued a ruling in Sackett v. Environmental Protection Agency (2023) 598 U.S. 651 that has had enormous ramifications for the health of the nations and Californias wetlands and waterways because it excluded many types of state waters, including certain wetlands, from federal Clean Water Act protection.
(f)The Porter-Cologne Water Quality Control Act applies to waters of the state, which includes wetlands and other isolated and ephemeral waters. The State of California and the state board possess independent power to protect and preserve the states remaining wetlands.
(g)In 2019, the state board adopted the State Policy for Water Quality Control: State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State. The state board adopted this state policy to ensure that California would protect wetlands no longer protected by federal law.
(h)The action by the state board builds on the history of Californias efforts to conserve, protect, and restore wetlands. On August 23, 1993, Governor Pete Wilson issued Executive Order No. W-59-93, in which he recognized the importance of wetlands to California, the extreme loss of wetlands during the 19th and 20th centuries, and the need to ensure no net loss and long-term gain in the quantity, quality, and permanence of wetlands acreage and values in a manner that fosters creativity, stewardship, and respect for private property.
(i)Since Governor Wilsons executive order establishing a state policy of no net loss and long-term gain of wetlands, California has continued to lose more wetland acres than it replaces through restoration or mitigation. As these wetlands disappear, more wetland-dependent fish and wildlife slide closer to extinction and migratory birds are crowded into shrinking habitat areas that cause devastating outbreaks of disease and fail to provide the food necessary for these birds to make their long journeys between their summer and winter homes. California continues to remove lands that, if conserved, would provide important public benefits.
(j)It is essential that California protect its last remaining wetlands and restore wetlands to achieve long-term gains for climate mitigation and resilience, flood risk reduction, clean water, biodiversity conservation, and recreation.
(k)It is the intent of the Legislature that the implementation of the state policy of no net loss and long-term gain of wetlands is not measured on a permit-by-permit basis. This state policy will take efforts on multiple scales to achieve, including thoughtful project design and implementation, conservation of wetlands, restoration of wetlands, and landscape scale conservation planning.
(l)It is the intent of the Legislature to codify the fundamental principles of the state wetlands policy to protect, restore, and expand California wetlands, and to concurrently ensure the state facilitates and encourages the enhancement and restoration of wetlands to prevent the loss of habitat due to inundation from sea level rise and other impacts associated with climate change.
16201.It is the policy of the state to ensure no net loss and long-term gain in the quantity, quality, and permanence of wetlands acreage and values in California.
The Legislature finds and declares the following:
(a)Californias wetland resources provide an abundance of benefits for humans and the environment, including, but not limited to, flood risk reduction, filtration of water pollutants, surface and groundwater supplies, shoreline protection, erosion reduction, wildlife habitat, open space, and public recreational opportunities. Wetlands are an important habitat for migratory waterfowl of the Pacific Flyway, endangered species, and many other resident wildlife and fish populations.
(b)Scientists have determined that though small in area, wetlands are carbon sinks and wetland drainage leads to significant carbon and greenhouse gas emissions as stored carbon is oxidized. Management and restoration of wetlands provide many opportunities to restore carbon and reduce greenhouse gas emissions.
(c)Historical filling and development projects have reduced California wetlands to a mere 10 percent of their original extent. The loss of coastal wetlands is even more alarming with 95 percent of the formerly abundant lagoons and marshes along Californias 1,100-mile coastline having been destroyed.
(d)In 1972, Congress enacted the Clean Water Act, which included a program designed to preserve the nations dwindling wetlands. In recent decades, litigation over the extent of federal authority to protect wetlands and federal regulators failure to delineate clearly that authority has combined to threaten the nations few remnant wetlands.
(e)The United States Supreme Court issued a ruling in Sackett v. Environmental Protection Agency (2023) 598 U.S. 651 that has had enormous ramifications for the health of the nations and Californias wetlands and waterways because it excluded many types of state waters, including certain wetlands, from federal Clean Water Act protection.
(f)The Porter-Cologne Water Quality Control Act applies to waters of the state, which includes wetlands and other isolated and ephemeral waters. The State of California and the state board possess independent power to protect and preserve the states remaining wetlands.
(g)In 2019, the state board adopted the State Policy for Water Quality Control: State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State. The state board adopted this state policy to ensure that California would protect wetlands no longer protected by federal law.
(h)The action by the state board builds on the history of Californias efforts to conserve, protect, and restore wetlands. On August 23, 1993, Governor Pete Wilson issued Executive Order No. W-59-93, in which he recognized the importance of wetlands to California, the extreme loss of wetlands during the 19th and 20th centuries, and the need to ensure no net loss and long-term gain in the quantity, quality, and permanence of wetlands acreage and values in a manner that fosters creativity, stewardship, and respect for private property.
(i)Since Governor Wilsons executive order establishing a state policy of no net loss and long-term gain of wetlands, California has continued to lose more wetland acres than it replaces through restoration or mitigation. As these wetlands disappear, more wetland-dependent fish and wildlife slide closer to extinction and migratory birds are crowded into shrinking habitat areas that cause devastating outbreaks of disease and fail to provide the food necessary for these birds to make their long journeys between their summer and winter homes. California continues to remove lands that, if conserved, would provide important public benefits.
(j)It is essential that California protect its last remaining wetlands and restore wetlands to achieve long-term gains for climate mitigation and resilience, flood risk reduction, clean water, biodiversity conservation, and recreation.
(k)It is the intent of the Legislature that the implementation of the state policy of no net loss and long-term gain of wetlands is not measured on a permit-by-permit basis. This state policy will take efforts on multiple scales to achieve, including thoughtful project design and implementation, conservation of wetlands, restoration of wetlands, and landscape scale conservation planning.
(l)It is the intent of the Legislature to codify the fundamental principles of the state wetlands policy to protect, restore, and expand California wetlands, and to concurrently ensure the state facilitates and encourages the enhancement and restoration of wetlands to prevent the loss of habitat due to inundation from sea level rise and other impacts associated with climate change.
16201.It is the policy of the state to ensure no net loss and long-term gain in the quantity, quality, and permanence of wetlands acreage and values in California.
The Legislature finds and declares the following:
(a)Californias wetland resources provide an abundance of benefits for humans and the environment, including, but not limited to, flood risk reduction, filtration of water pollutants, surface and groundwater supplies, shoreline protection, erosion reduction, wildlife habitat, open space, and public recreational opportunities. Wetlands are an important habitat for migratory waterfowl of the Pacific Flyway, endangered species, and many other resident wildlife and fish populations.
(b)Scientists have determined that though small in area, wetlands are carbon sinks and wetland drainage leads to significant carbon and greenhouse gas emissions as stored carbon is oxidized. Management and restoration of wetlands provide many opportunities to restore carbon and reduce greenhouse gas emissions.
(c)Historical filling and development projects have reduced California wetlands to a mere 10 percent of their original extent. The loss of coastal wetlands is even more alarming with 95 percent of the formerly abundant lagoons and marshes along Californias 1,100-mile coastline having been destroyed.
(d)In 1972, Congress enacted the Clean Water Act, which included a program designed to preserve the nations dwindling wetlands. In recent decades, litigation over the extent of federal authority to protect wetlands and federal regulators failure to delineate clearly that authority has combined to threaten the nations few remnant wetlands.
(e)The United States Supreme Court issued a ruling in Sackett v. Environmental Protection Agency (2023) 598 U.S. 651 that has had enormous ramifications for the health of the nations and Californias wetlands and waterways because it excluded many types of state waters, including certain wetlands, from federal Clean Water Act protection.
(f)The Porter-Cologne Water Quality Control Act applies to waters of the state, which includes wetlands and other isolated and ephemeral waters. The State of California and the state board possess independent power to protect and preserve the states remaining wetlands.
(g)In 2019, the state board adopted the State Policy for Water Quality Control: State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State. The state board adopted this state policy to ensure that California would protect wetlands no longer protected by federal law.
(h)The action by the state board builds on the history of Californias efforts to conserve, protect, and restore wetlands. On August 23, 1993, Governor Pete Wilson issued Executive Order No. W-59-93, in which he recognized the importance of wetlands to California, the extreme loss of wetlands during the 19th and 20th centuries, and the need to ensure no net loss and long-term gain in the quantity, quality, and permanence of wetlands acreage and values in a manner that fosters creativity, stewardship, and respect for private property.
(i)Since Governor Wilsons executive order establishing a state policy of no net loss and long-term gain of wetlands, California has continued to lose more wetland acres than it replaces through restoration or mitigation. As these wetlands disappear, more wetland-dependent fish and wildlife slide closer to extinction and migratory birds are crowded into shrinking habitat areas that cause devastating outbreaks of disease and fail to provide the food necessary for these birds to make their long journeys between their summer and winter homes. California continues to remove lands that, if conserved, would provide important public benefits.
(j)It is essential that California protect its last remaining wetlands and restore wetlands to achieve long-term gains for climate mitigation and resilience, flood risk reduction, clean water, biodiversity conservation, and recreation.
(k)It is the intent of the Legislature that the implementation of the state policy of no net loss and long-term gain of wetlands is not measured on a permit-by-permit basis. This state policy will take efforts on multiple scales to achieve, including thoughtful project design and implementation, conservation of wetlands, restoration of wetlands, and landscape scale conservation planning.
(l)It is the intent of the Legislature to codify the fundamental principles of the state wetlands policy to protect, restore, and expand California wetlands, and to concurrently ensure the state facilitates, and encourages, facilitates and encourages the enhancement and restoration of wetlands to prevent the loss of habitat due to inundation from sea level rise and other impacts associated with climate change.
16201.It is the policy of the state to ensure no net loss and long-term gain in the quantity, quality, and permanence of wetlands acreage and values in California.
The Legislature finds and declares the following:
(a)Californias wetland resources provide an abundance of benefits for humans and the environment, including, but not limited to, flood protection, risk reduction, filtration of water pollutants, surface and groundwater supplies, shoreline protection, erosion reduction, wildlife habitat, open space, and public recreational opportunities. Wetlands are an important habitat for migratory waterfowl of the Pacific Flyway, endangered species, and many other resident wildlife and fish populations.
(b)Scientists have determined that though small in area, wetlands are carbon sinks and wetland drainage leads to significant carbon and greenhouse gas emissions as stored carbon is oxidized. Management and restoration of wetlands provide many opportunities to restore carbon and reduce greenhouse gas emissions.
(c)Historical filling and development projects have reduced California wetlands to a mere 10 percent of their original extent. The loss of coastal wetlands is even more alarming with 95 percent of the formerly abundant lagoons and marshes along Californias 1,100-mile coastline having been destroyed.
(d)In 1972, Congress enacted the Clean Water Act, which included a program designed to preserve the nations dwindling wetlands. In recent decades, litigation over the extent of federal authority to protect wetlands and federal regulators failure to delineate clearly that authority has combined to threaten the nations few remnant wetlands.
(e)The United States Supreme Court issued a ruling in Sackett v. Environmental Protection Agency (2023) 598 U.S. 651 that has had enormous ramifications for the health of the nations and Californias wetlands and waterways because it excluded many types of state waters, including certain wetlands, from federal Clean Water Act protection.
(f)The Porter-Cologne Water Quality Control Act applies to waters of the state, which includes wetlands and other isolated and ephemeral waters. The State of California and the state board possess independent power to protect and preserve the states remaining wetlands.
(g)In 2019, the state board adopted the State Policy for Water Quality Control: State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State. The state board adopted this state policy to ensure that California would protect wetlands no longer protected by federal law.
(h)The action by the state board builds on the history of Californias efforts to conserve, protect, and restore wetlands. On August 23, 1993, Governor Pete Wilson issued Executive Order No. W-59-93, in which he recognized the importance of wetlands to California, the extreme loss of wetlands during the 19th and 20th centuries, and the need to ensure no net loss and long-term gain in the quantity, quality, and permanence of wetlands acreage and values in a manner that fosters creativity, stewardship, and respect for private property.
(i)Since Governor Wilsons executive order establishing a state policy of no net loss and long-term gain of wetlands, California has continued to lose more wetland acres than it replaces through restoration or mitigation. As these wetlands disappear, more wetland-dependent fish and wildlife slide closer to extinction and migratory birds are crowded into shrinking habitat areas that cause devastating outbreaks of disease and fail to provide the food necessary for these birds to make their long journeys between their summer and winter homes. California continues to remove lands that, if conserved, would provide important public benefits.
(j)It is essential that California protect its last remaining wetlands and restore wetlands to achieve long-term gains for climate mitigation and resilience, flood control, risk reduction, clean water, biodiversity conservation, and recreation.
(k)It is the intent of the Legislature that the implementation of the state policy of no net loss and long-term gain of wetlands is not measured on a permit-by-permit basis. This state policy will take efforts on multiple scales to achieve, including thoughtful project design and implementation, conservation of wetlands, restoration of wetlands, and landscape scale conservation planning.
(l)It is the intent of the Legislature to codify the fundamental principles of the state wetlands policy to protect, restore, and expand California wetlands, and to concurrently ensure the state facilitates, and encourages, the enhancement and restoration of wetlands to prevent the loss of habitat due to inundation from sea level rise and other impacts associated with climate change.
16201.It is the policy of the state to ensure no net loss and long-term gain in the quantity, quality, and permanence of wetlands acreage and values in California.
The Legislature finds and declares the following:
(a)Californias wetland resources provide an abundance of benefits for humans and the environment, including, but not limited to, flood protection, filtration of water pollutants, surface and groundwater supplies, shoreline protection, erosion reduction, wildlife habitat, open space, and public recreational opportunities. Wetlands are an important habitat for migratory waterfowl of the Pacific Flyway, endangered species, and many other resident wildlife and fish populations.
(b)Scientists have determined that though small in area, wetlands are carbon sinks and wetland drainage leads to significant carbon and greenhouse gas emissions as stored carbon is oxidized. Management and restoration of wetlands provide many opportunities to restore carbon and reduce greenhouse gas emissions.
(c)Historical filling and development projects have reduced California wetlands to a mere 10 percent of their original extent. The loss of coastal wetlands is even more alarming with 95 percent of the formerly abundant lagoons and marshes along Californias 1,100-mile coastline having been destroyed.
(d)In 1972, Congress enacted the Clean Water Act, which included a program designed to preserve the nations dwindling wetlands. In recent decades, litigation over the extent of federal authority to protect wetlands and federal regulators failure to delineate clearly that authority has combined to threaten the nations few remnant wetlands.
(e)The United States Supreme Court issued a ruling in Sackett v. Environmental Protection Agency (2023) 598 U.S. 651 that has had enormous ramifications for the health of the nations and Californias wetlands and waterways because it excluded many types of state waters, including certain wetlands, from federal Clean Water Act protection.
(f)The Porter-Cologne Water Quality Control Act applies to waters of the state, which includes wetlands and other isolated and ephemeral waters. The State of California and the state board possess independent power to protect and preserve the states remaining wetlands.
(g)In 2019, the state board adopted the State Policy for Water Quality Control: State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State. The state board adopted this state policy to ensure that California would protect wetlands no longer protected by federal law.
(h)The action by the state board builds on the history of Californias efforts to conserve, protect, and restore wetlands. On August 23, 1993, Governor Pete Wilson issued Executive Order No. W-59-93, in which he recognized the importance of wetlands to California, the extreme loss of wetlands during the 19th and 20th centuries, and the need to ensure no net loss and long-term gain in the quantity, quality, and permanence of wetlands acreage and values in a manner that fosters creativity, stewardship, and respect for private property.
(i)Since Governor Wilsons executive order establishing a state policy of no net loss and long-term gain of wetlands, California has continued to lose more wetland acres than it replaces through restoration or mitigation. As these wetlands disappear, more wetland-dependent fish and wildlife slide closer to extinction and migratory birds are crowded into shrinking habitat areas that cause devastating outbreaks of disease and fail to provide the food necessary for these birds to make their long journeys between their summer and winter homes. California continues to remove lands that, if conserved, would provide important public benefits.
(j)It is essential that California protect its last remaining wetlands and restore wetlands to achieve long-term gains for climate mitigation and resilience, flood control, clean water, biodiversity conservation, and recreation.
16201.It is the policy of the state to ensure no net loss and long-term gain in the quantity, quality, and permanence of wetlands acreage and values in California.
|
Date
|
Status
|
|---|---|
| Sep 25, 2024 | Chaptered by Secretary of State - Chapter 579, Statutes of 2024. |
| Sep 25, 2024 | Approved by the Governor. |
| Sep 5, 2024 | Enrolled and presented to the Governor at 4 p.m. |
| Aug 27, 2024 | Senate amendments concurred in. To Engrossing and Enrolling. (Ayes 76. Noes 0.). |
| Aug 27, 2024 | Assembly Rule 77 suspended. |
| Aug 26, 2024 | In Assembly. Concurrence in Senate amendments pending. May be considered on or after August 28 pursuant to Assembly Rule 77. |
| Aug 26, 2024 | Read third time. Passed. Ordered to the Assembly. (Ayes 35. Noes 0.). |
| Aug 22, 2024 | Read second time. Ordered to third reading. |
| Aug 21, 2024 | Read third time and amended. Ordered to second reading. |
| Aug 20, 2024 | Read second time. Ordered to third reading. |
| Aug 19, 2024 | Read third time and amended. Ordered to second reading. |
| Jun 19, 2024 | Read second time. Ordered to third reading. |
| Jun 18, 2024 | From committee: Do pass. (Ayes 9. Noes 0.) (June 17). |
| Jun 5, 2024 | Referred to Com. on N.R. & W. |
| May 23, 2024 | In Senate. Read first time. To Com. on RLS. for assignment. |
| May 22, 2024 | Read third time. Passed. Ordered to the Senate. (Ayes 72. Noes 0. Page 5513.) |
| May 20, 2024 | Read second time. Ordered to third reading. |
| May 16, 2024 | From committee: Do pass. (Ayes 15. Noes 0.) (May 16). |
| Apr 17, 2024 | In committee: Set, first hearing. Referred to APPR. suspense file. |
| Apr 9, 2024 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 14. Noes 0.) (April 9). Re-referred to Com. on APPR. |
| Mar 11, 2024 | Referred to Com. on W., P., & W. |
| Feb 16, 2024 | From printer. May be heard in committee March 17. |
| Feb 15, 2024 | Read first time. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 27, 2024 | AB 2875 Friedman Concurrence in Senate Amendments | Assembly Floor |
Passed |
|
| Aug 26, 2024 | Assembly 3rd Reading AB2875 Friedman By Caballero | Senate Floor |
Passed |
|
| Jun 17, 2024 | Do pass | Senate Standing Committee on Natural Resources and Water |
Passed |
|
| May 22, 2024 | AB 2875 Friedman Assembly Third Reading By PAPAN | Assembly Floor |
Passed |
|
| May 16, 2024 | Do pass. | Assembly Standing Committee on Appropriations |
Passed |
|
| Apr 9, 2024 | Do pass and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Water, Parks, and Wildlife |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| 350 Sacramento | * Support | Jun 17, 2024 |
| Audubon California | ** Support | |
| Bolsa Chica Land Trust | ** Support | |
| California Association Of Professional Scientists | ** Support | |
| California Audubon | ** Support | |
| California Construction And Industrial Materials Association | * For If Amend | Apr 9, 2024 |
| California Council Of Land Trusts | ** Support | |
| California Environmental Voters | ** Support | |
| California Native Plant Society | ** Support | |
| California State Parks Foundation | ** Support | Apr 9, 2024 |
| California Waterfowl Association | ** Support | |
| Center For Biological Diversity | ** Support | |
| Clean Water Action | ** Support | |
| cleanearth4kids.org | ** Support | |
| Climate Action California | ** Support | |
| Coastal Ranches Conservancy | * Support | Jun 17, 2024 |
| Defenders Of Wildlife | ** Support | |
| Ducks Unlimited | ** Support | |
| Endangered Habitats League | ** Support | |
| Environmental Defense Center | ** Support | |
| Environmental Protection Information Center | ** Support | |
| Forests Forever | ** Support | |
| Friends of the Inyo | ** Support | |
| Friends of the River | ** Support | |
| Friends of the Santa Clara River | * Support | Jun 17, 2024 |
| Grassland Water District | ** Support | |
| Los Angeles Neighborhood Land Trust | ** Support | |
| Midpeninsula Regional Open Space District | ** Support | |
| Mono Lake Committee | ** Support | |
| National Audubon Society | ** Support | |
| Natural Resources Defense Council (NRDC) | * Support | Jun 17, 2024 |
| Nature Conservancy | ** Support | |
| North Fork Mono Tribe | ** Support | |
| Pacific Forest Trust | ** Support | |
| Peninsula Open Space Trust | * Support | Jun 17, 2024 |
| Planning And Conservation League | ** Support | |
| Resource Renewal Institute | ** Support | |
| San Francisco Baykeeper | ** Support | |
| Santa Barbara Audobon Society | ** Support | |
| Santa Clara Valley Audubon Society | ** Support | |
| Santa Clara Valley Water District | * For If Amend | Jun 17, 2024 |
| Sea And Sage Audubon Society | ** Support | |
| Sierra Club California | ** Support | |
| Sierra County Land Trust | ** Support | |
| Sierra Nevada Alliance | ** Support | |
| Sonoma Land Trust | ** Support | |
| The Wildlands Conservancy | ** Support | |
| Tuolumne River Trust | ** Support | |
| Yosemite Sequoia Resource Conservation and Development Council | ** Support |
CONCURRENCE IN SENATE AMENDMENTS
CSA1 Bill Id:AB 2875
Author:(Friedman)
As Amended Ver:August 21, 2024
Majority vote
SUMMARY
Declares it is state policy to ensure no net loss, and long-term gain, in the quantity, quality, and permanence of wetlands acreage. Makes findings and declarations regarding the importance of wetlands and wetland policy.
Senate Amendments
- State legislative intent that implementation of the "no net loss" of wetlands policy is not measured on a permit-by-permit basis.
- State legislative intent to codify the fundamental principles of wetlands policy to protect, restore, and expand California wetlands while ensuring and encouraging no loss of wetlands due to sea level rise or other impacts from climate change.
- Make technical and clarifying changes.
COMMENTS
"Wetland" encompasses a wide variety of land types and includes desert playas, washes, oases, marshes, meadows, bogs, fens, sag ponds, vernal pools, tidal flats, tidal marshes, and even wastewater treatment ponds. Generally, wetlands are lower elevation lands that are covered, either seasonally or permanently, with shallow water. Wetlands occur in all regions of California and in both coastal (brackish or saline water) and inland areas (typically freshwater). Wetlands form where rainfall or water runoff accumulates and where groundwater saturates the topsoil. There are approximately 2.9 million acres of wetlands in California (Natural Resources Agency, 2010) representing nearly 3% of the state's land cover. "It is estimated that California has lost more than 90% of its historic wetlands overall, and more than 95% of its coastal wetlands. The remaining wetlands are vulnerable to development, roads, farming practices, hydromodification, pollutants, invasive species, climate change, and a host of other potential stressors" (California Wetland Program Plan, 2023-2028).
While at the time of statehood, wetlands were perceived more negatively and terms such as "swamp" or "mire" might be used to describe wetland areas, wetlands have come to be increasingly valued for the many benefits they provide to society. These benefits include water storage, groundwater recharge, pollution control, nutrient cycling, shoreline protection, maintenance of biodiversity, recreation, education, and carbon sequestration (California Natural Resources Agency, 1990).
Executive Order (EO) W-59-93. Issued by Governor Wilson in 1993, this EO put in place the "California Wetlands Conservation Policy" that rests on three primary objectives: (a) to ensure no net loss and long-term gain of wetlands acreage and values; (b) to reduce complexity in the administration of state and federal wetlands conservation programs; and (c) to encourage partnerships, landowner incentives, and cooperative planning the basis of wetlands conservation. The EO calls for, among other things, an inventory and accounting system for wetlands, state assistance for local wetland planning efforts, development of a consistent definition of wetlands, development of consistent standards and guidelines concerning wetland mitigation and monitoring of mitigation and restoration efforts, and increased efficiency of wetlands-related permitting processes. The language of this bill comes from the EO.
California Wetlands Monitoring Workgroup (CWMW). The CWMW is a workgroup of the California Water Quality Monitoring Council, to provide the mechanism for coordination and collaboration among federal, state, local, and tribal agencies and non-governmental science support organizations involved in tool development and implementation. According to its website, CWMW's "mission is to improve the monitoring and assessment of wetland and riparian resources by developing a comprehensive stream, wetland, and riparian area monitoring plan for California and through increasing coordination and cooperation among local, state, and federal agencies, tribes, and non-governmental organizations. The workgroup reviews technical and policy aspects of wetland monitoring, tool development, and implementation and use of data to improve wetland management in California." CWMW's most recent plan is the "California Wetland Program Plan 2023-2028."
Sackett decision. This decision stems from a case in which the Sackett couple purchased property in Idaho and began backfilling the lot with dirt in preparation for building a home. The U.S. Environmental Protection Agency (EPA) informed the Sacketts that the lot contained wetlands that were Waters of the U.S. (WOTUS) and that, therefore, the backfilling was in violation of the federal Clean Water Act. The Sacketts sued alleging their property did not contain WOTUS as the property was near a ditch that fed into a lake and did not contain wetlands. The federal District Court and Ninth Circuit affirmed the U.S. EPA's jurisdiction, but the Supreme Court overturned the decision in May 2023 finding that WOTUS refers only to "geographic features that are described in ordinary parlance as 'streams, oceans, rivers, and lakes'" and to adjacent wetlands that are "indistinguishable" from those bodies of water due to continuous surface connection. The Sackett decision narrows what was previously understood to be WOTUS and limits U.S. EPA jurisdiction over many wetlands. In response, State Water Resources Control Board (State Water Board) has made a budget request of $6.1 million in fiscal year (FY) 2024-25 and $7 million ongoing for 38 new positions in anticipation of increased workload related to water quality permitting and enforcement of "waters of the state" that had been considered WOTUS (and, therefore, subject to jurisdiction of U.S. EPA and U.S. Army Corps of Engineers) until the Sackett decision.
The FY 2024-25 budget appropriates $4.7 million in FY 2024-25 and annually thereafter for 26 permanent positions at the State Water Board to conduct water quality permitting and enforcement work that had historically been conducted by the U.S. Army Corps of Engineers and the U.S. EPA. A significant portion of these funds will address wetland protection.
According to the Author
"California has lost more than 90% of its historic wetlands from projects that filled in and converted wetlands to agricultural lands, housing, roads, and other development projects;" this is problematic because wetlands "provide important functions, including flood control, improving water quality and water supply, carbon sequestration, recreation, and habitat for imperiled species."
"California acknowledged the importance of its wetlands when Governor Pete Wilson signed an executive order in 1993 declaring California's policy of no-net-loss of wetlands. Unfortunately, since that time, state and federal laws and regulations have proved to be inadequate. Every year, California loses more wetland acres than it replaces with restoration or mitigation. As these wetlands disappear, more and more wetland-dependent fish and wildlife slide closer to extinction and migratory birds are crowded into shrinking habitat areas."
Arguments in Support
This bill is sponsored by Audubon California and is supported by a number of environmental and conservation organizations. Audubon et al. argue that this bill codifies the state's long-standing "no net loss policy" and that it is as important as ever given that less than 10% of the state's historic wetlands remain. Audubon points out that wetlands provide many benefits: "Wetlands are among the most productive ecosystems in the world, comparable to rain forests and coral reefs, and can be thought of as "biological supermarkets." Wetlands function as natural sponges that trap and slowly release surface water, rain, snowmelt, groundwater, and flood waters. Trees, root mats and other wetland vegetation also slow the speed of flood waters and distribute them more slowly over the floodplain. This combination of water storage and braking action lowers flood heights and reduces erosion. Coastal wetlands also provide natural barriers to shoreline erosion. Finally, wetlands filter water, providing natural water quality improvement." Audubon maintains that this bill "will demonstrate our commitment to science-based wetland conservation that benefits our public health and biodiversity and supports our efforts to combat climate change and promote adaptation to the inevitable effects from climate change."
Arguments in Opposition
None on file.
FISCAL COMMENTS
According to the Assembly Appropriations Committee:
Costs and cost pressures of an unknown but significant amount, likely in the low to tens of millions of dollars, for state agencies to implement this policy (General Fund and special funds).
VOTES:
ASM WATER, PARKS, AND WILDLIFE: 14-0-1
YES: Papan, Addis, Alanis, Alvarez, Bennett, Bonta, Gallagher, Davies, Garcia, Hart, Luz Rivas, Schiavo, Villapudua, Weber
ABS, ABST OR NV: Mathis
ASM APPROPRIATIONS: 15-0-0
YES: Wicks, Sanchez, Arambula, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Grayson, Haney, Hart, Jim Patterson, Pellerin, Ta, Villapudua
ASSEMBLY FLOOR: 72-0-8
YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Dixon, Flora, Mike Fong, Vince Fong, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas
ABS, ABST OR NV: Calderon, Cervantes, Megan Dahle, Essayli, Friedman, Holden, Mathis, Luz Rivas
SENATE FLOOR: 37-0-3
YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk
ABS, ABST OR NV: Dahle, Hurtado, Seyarto
UPDATED
VERSION: August 21, 2024
CONSULTANT: Pablo Garza / W., P., & W. / (916) 319-2096 FN: 0004762
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB 2875 |
THIRD READING
Bill No: AB 2875
Author: Friedman (D)
Amended: 8/21/24 in Senate
Vote: 21
SENATE NATURAL RES. & WATER COMMITTEE: 9-0, 6/17/24
AYES: Min, Allen, Eggman, Grove, Hurtado, Laird, Limón, Padilla, Stern
NO VOTE RECORDED: Seyarto, Dahle
ASSEMBLY FLOOR: 72-0, 5/22/24 - See last page for vote
SUBJECT: Wetlands: state policy
SOURCE: Audubon California
DIGEST:
This bill declares it is state policy to ensure no net loss, and long-term gain, in the quantity, quality, and permanence of wetlands acreage.
Senate Floor Amendments of 8/21/24 are technical that remove two commas from the previous set of floor amendments.
Senate Floor Amendments of 8/19/24 were technical in nature by adding and clarifying intent language.
ANALYSIS:
Existing law:
- Authorizes, under the Porter-Cologne Water Quality Control Act, the State Water Board and regional water quality control boards to regulate discharges of waste that may affect the quality of waters of the state. (Water Code (WC) §§ 13000 et seq.)
- Defines “waters of the state” as any surface water or groundwater, including saline waters, within the boundaries of the state. This definition includes natural wetlands, wetlands created by modification of a surface water of the state, and artificial wetlands that meet certain criteria. (WC § 13050 (e))
- Requires, under the Keene-Nejedly California Wetlands Preservation Act, the Natural Resources Agency to inventory existing wetlands in California and develop a study to identify opportunities to protect and enhance the state’s wetlands. (Public Resources Code §§ 5810 – 5818.2)
- Declares it is state policy to ensure that no net loss of either wetland acreage or habitat value occurs as a result of fill permit activities pursuant to Section 404 of the federal Clean Water Act. (Title 33 U.S.C. § 1344 and Fish and Game Code (FGC) § 1776)
- Defines “wetlands” as lands which may be covered periodically or permanently with shallow water and which include saltwater marshes, freshwater marshes, open or closed brackish water marshes, swamps, mudflats, fens, and vernal pools. (FGC § 2785)
This bill:
- Declares it is state policy to ensure no net loss, and long-term gain, in the quantity, quality, and permanence of wetlands acreage.
- Makes findings and declarations regarding the importance of wetlands and wetland policy.
Background
- Wetlands in California. A wetland encompasses a wide variety of land types and includes desert playas, washes, and oases, marshes, meadows, bogs, fens, sag ponds, vernal pools, tidal flats, tidal marshes, and even wastewater treatment ponds. Generally, wetlands are lower elevation lands that are covered, either seasonally or permanently, with shallow water. Wetlands occur in all regions of California and in both coastal (brackish or saline water) and inland areas (typically freshwater). Wetlands form where rainfall or water runoff accumulates and where groundwater saturates the topsoil.
Prior to European colonization, around 5 million acres of wetlands supported lush aquatic vegetation and provided habitat for hundreds of species of fish and wildlife as well as food, clothing, protection from predators, and transportation for native people. Over 90% of the state's wetlands have been drained, mostly for agricultural purposes, and California now only has about 454,000 acres of nonagricultural wetlands. The remaining wetlands are vulnerable to development, roads, farming practices, hydromodification, pollutants, invasive species, climate change, and a host of other potential stressors.
California's wetlands have significant environmental and economic value for humans and wildlife. These benefits include water storage, groundwater recharge, pollution control, nutrient cycling, shoreline protection, maintenance of biodiversity, recreation, education, and carbon sequestration. While at the time of statehood, wetlands were perceived more negatively and terms such as “swamp” or “mire” were used to describe wetland areas, wetlands have come to be increasingly valued for the many benefits they provide to society.
- Executive Order (EO) W-59-93. Issued by Governor Wilson in 1993, this EO put in place the “California Wetlands Conservation Policy” which rests on three primary objectives: (a) to ensure no net loss and long-term gain of wetlands acreage and values; (b) to reduce complexity in the administration of state and federal wetlands conservation programs; and (c) to encourage partnerships, landowner incentives, and cooperative planning - the basis of wetlands conservation. The EO calls for, among other things, an inventory and accounting system for wetlands, state assistance for local wetland planning efforts, development of a consistent definition of wetlands, development of consistent standards and guidelines concerning wetland mitigation and monitoring of mitigation and restoration efforts, and increased efficiency of wetlands-related permitting processes.
- State wetland definition. In 2019, the State Water Resources Control Board (State Water Board) adopted a new version of the “State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State” (Procedures) to ensure the continued protection of waters of the state even if protections for federal waters are narrowed by administrative actions or the courts. The Procedures consist of four major elements:
- A wetland definition;
b) A framework for determining if a wetland feature is a water of the state;
c) Wetland delineation procedures; and
d) Procedures for the submittal, review, and approval of applications for Water Quality Certifications and Waste Discharge Requirements for dredge or fill activities.
The Procedures conform to EO W-59-93 and ensure that the regulation of dredge or fill activities will be conducted in a manner “to ensure no overall net loss and long-term net gain in the quantity, quality, and permanence of wetlands acreage and values…” The State Water Board defines an area as wetland as follows:
An area is wetland if, under normal circumstances, (1) the area has continuous or recurrent saturation of the upper substrate caused by groundwater, or shallow surface water, or both; (2) the duration of such saturation is sufficient to cause anaerobic conditions in the upper substrate; and (3) the area’s vegetation is dominated by hydrophytes or the area lacks vegetation.
The wetland definition encompasses the full range of wetland types commonly recognized in California, including some features not protected under federal law, and reflects current scientific understanding of the formation and functioning of wetlands.
- California Wetlands Monitoring Workgroup (CWMW). The CWMW is a workgroup of the California Water Quality Monitoring Council, to provide the mechanism for coordination and collaboration among federal, state, local, and tribal agencies and non-governmental science support organizations involved in tool development and implementation. According to its website, CWMW’s “mission is to improve the monitoring and assessment of wetland and riparian resources by developing a comprehensive stream, wetland, and riparian area monitoring plan for California and through increasing coordination and cooperation among local, state, and federal agencies, tribes, and non-governmental organizations. The workgroup reviews technical and policy aspects of wetland monitoring tool development, implementation, and use of data to improve wetland management in California.”
Comments
Sackett decision. In May 2023, the United States Supreme Court held that the federal Clean Water Act’s definition of “waters of the United States” extends to only those “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” so that they are “indistinguishable” from those waters. Following the Court’s decision, the Clean Water Act covers only adjoining wetlands, a reading that excludes wetlands separated from jurisdictional waters by man-made dikes or barriers, natural river berms, beach dunes, and the like that had previously been protected by eight different Presidential administrations.
Sackett does not affect the definition of “waters of the state” as used in California state law, however, California will have to rely on its state-level authorities to blunt some of the adverse effects from the loss of wetland protections within the state. This bill could help the state protect wetlands where federal protection is no longer available.
Ensuring no net loss. The language of this bill comes directly from EO W-59-93. Despite the EO, the state, by its own estimation, has seen a net loss of wetlands. Some of that loss comes from acreage, but some also comes from quality. Many compensatory mitigation projects fail to replace the functions lost when wetlands were affected, even when they meet permit requirements in terms of area and/or establishment of wetland vegetation. Part of the problem is that mitigation projects have skewed towards more easily established wetlands like ponds instead of replacing the habitat or ecological functions lost, like forested wetlands. Another problem is that wetland creation or restoration projects rarely function to the same degree as natural, undisturbed wetlands and often fall short in establishing permanent wetland habitat over the entire area affected by the project.
While this bill is a good step in protecting the State’s remaining wetlands, more work is likely needed in order to ensure that the policy of no net loss in “…the quantity, quality, and permanence of wetlands acreage” is implemented across the state.
Related/Prior Legislation
AB 2286 (Davis, Chapter 964, Statutes of 2000) required the California Natural Resources Agency to update the wetlands management plan required by the Keene-Nejedly California Wetlands Preservation Act of 1978.
SB 1447 (Kuehl, 2004) would have required the Fish and Game Commission to adopt regulations to protect state regulated wetlands to implement the no net loss of state wetlands policy. The bill was never set for hearing.
SB 1477 (Sher, 2004) would have expanded the jurisdiction of the State Water Board to isolated lakes and streams, wetlands, and riparian areas that may no longer be protected by federal agencies. The bill failed passage in the Assembly Water, Parks and Wildlife Committee.
FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No
SUPPORT: (Verified 8/19/24)
Audubon California (source)
Bolsa Chica Land Trust
California Association of Professional Scientists
California Council of Land Trusts
California Environmental Voters
California Native Plant Society
California Waterfowl Association
Center for Biological Diversity
Clean Water Action
Cleanearth4kids.org
Climate Action California
Defenders of Wildlife
Ducks Unlimited
Endangered Habitats League
Environmental Defense Center
Environmental Protection Information Center
Forests Forever
Friends of the Inyo
Friends of the River
Grassland Water District
Los Angeles Neighborhood Land Trust
Midpeninsula Regional Open Space District
Mono Lake Committee
National Audubon Society
Nature Conservancy
North Fork Mono Tribe
Pacific Forest Trust
Planning and Conservation League
Resource Renewal Institute
San Francisco Baykeeper
Santa Barbara Audubon Society
Santa Clara Valley Audubon Society
Sea and Sage Audubon Society
Sierra Club California
Sierra County Land Trust
Sierra Nevada Alliance
Sonoma Land Trust
The Wildlands Conservancy
Tuolumne River Trust
Yosemite Sequoia Resource Conservation and Development Council
OPPOSITION: (Verified 8/19/24)
None received
ARGUMENTS IN SUPPORT: According to the author, “California has lost more than 90% of its historic wetlands from projects that filled in and converted wetlands to agricultural lands, housing, roads, and other development projects. The Central Valley originally had more than 4 million acres of wetlands that were, at one time, important stopover sites for millions of migratory birds. Today, the extent of seasonal wetlands in the Central Valley has decreased by over 95%, and less than 200,000 acres of seasonal wetlands remain in the Valley. The loss of coastal wetlands is equally alarming with 95% of the formerly abundant lagoons and marshes along California’s 1100-mile coastline lost to destruction. In southern California, studies have shown a loss of between 75 and 85% of historical wetlands. These areas provide important functions, including flood control, improving water quality and water supply, carbon sequestration, recreation, and habitat for imperiled species.”
“California acknowledged the importance of its wetlands when Governor Pete Wilson signed an executive order in 1993 declaring California’s policy of no-net-loss of wetlands. Unfortunately, since that time, state and federal laws and regulations have proved to be inadequate. Every year, California loses more wetland acres than it replaces with restoration or mitigation. As these wetlands disappear, more and more wetland-dependent fish and wildlife slide closer to extinction and migratory birds are crowded into shrinking habitat areas.”
“The U.S. Supreme Court’s decision in Sackett v. EPA, 143 S. Ct. 1322 (2023), has severely restricted the definition of “waters of the U.S.,” leaving many wetlands in California without federal Clean Water Act protection. AB 2875 provides important leadership for other states and provides a model for using state law to shield wetland resources from efforts to erode federal protections. By clearly stating in statute that it is the state’s policy to ensure no net loss and long-term gain in the quantity, quality, and permanence of wetlands acreage and values in California, we will demonstrate our commitment to science-based wetland conservation that benefits our public health and biodiversity and support our efforts to combat climate change and promote adaptation to the inevitable effects from climate change.”
ASSEMBLY FLOOR: 72-0, 5/22/24
AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Dixon, Flora, Mike Fong, Vince Fong, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas
NO VOTE RECORDED: Calderon, Cervantes, Megan Dahle, Essayli, Friedman, Holden, Mathis, Luz Rivas
Prepared by: Paul Jacobs / N.R. & W. / (916) 651-4116
8/22/24 16:10:39
**** END ****
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB 2875 |
THIRD READING
Bill No: AB 2875
Author: Friedman (D)
Amended: 8/19/24 in Senate
Vote: 21
SENATE NATURAL RES. & WATER COMMITTEE: 9-0, 6/17/24
AYES: Min, Allen, Eggman, Grove, Hurtado, Laird, Limón, Padilla, Stern
NO VOTE RECORDED: Seyarto, Dahle
ASSEMBLY FLOOR: 72-0, 5/22/24 - See last page for vote
SUBJECT: Wetlands: state policy
SOURCE: Audubon California
DIGEST:
This bill declares it is state policy to ensure no net loss, and long-term gain, in the quantity, quality, and permanence of wetlands acreage.
Senate Floor Amendments of 8/19/24 are technical in nature by adding and clarifying intent language.
ANALYSIS:
Existing law:
- Authorizes, under the Porter-Cologne Water Quality Control Act, the State Water Board and regional water quality control boards to regulate discharges of waste that may affect the quality of waters of the state. (Water Code (WC) §§ 13000 et seq.)
- Defines “waters of the state” as any surface water or groundwater, including saline waters, within the boundaries of the state. This definition includes natural wetlands, wetlands created by modification of a surface water of the state, and artificial wetlands that meet certain criteria. (WC § 13050 (e))
- Requires, under the Keene-Nejedly California Wetlands Preservation Act, the Natural Resources Agency to inventory existing wetlands in California and develop a study to identify opportunities to protect and enhance the state’s wetlands. (Public Resources Code §§ 5810 – 5818.2)
- Declares it is state policy to ensure that no net loss of either wetland acreage or habitat value occurs as a result of fill permit activities pursuant to Section 404 of the federal Clean Water Act. (Title 33 U.S.C. § 1344 and Fish and Game Code (FGC) § 1776)
- Defines “wetlands” as lands which may be covered periodically or permanently with shallow water and which include saltwater marshes, freshwater marshes, open or closed brackish water marshes, swamps, mudflats, fens, and vernal pools. (FGC § 2785)
This bill:
- Declares it is state policy to ensure no net loss, and long-term gain, in the quantity, quality, and permanence of wetlands acreage.
- Makes findings and declarations regarding the importance of wetlands and wetland policy.
Background
- Wetlands in California. A wetland encompasses a wide variety of land types and includes desert playas, washes, and oases, marshes, meadows, bogs, fens, sag ponds, vernal pools, tidal flats, tidal marshes, and even wastewater treatment ponds. Generally, wetlands are lower elevation lands that are covered, either seasonally or permanently, with shallow water. Wetlands occur in all regions of California and in both coastal (brackish or saline water) and inland areas (typically freshwater). Wetlands form where rainfall or water runoff accumulates and where groundwater saturates the topsoil.
Prior to European colonization, around 5 million acres of wetlands supported lush aquatic vegetation and provided habitat for hundreds of species of fish and wildlife as well as food, clothing, protection from predators, and transportation for native people. Over 90% of the state's wetlands have been drained, mostly for agricultural purposes, and California now only has about 454,000 acres of nonagricultural wetlands. The remaining wetlands are vulnerable to development, roads, farming practices, hydromodification, pollutants, invasive species, climate change, and a host of other potential stressors.
California's wetlands have significant environmental and economic value for humans and wildlife. These benefits include water storage, groundwater recharge, pollution control, nutrient cycling, shoreline protection, maintenance of biodiversity, recreation, education, and carbon sequestration. While at the time of statehood, wetlands were perceived more negatively and terms such as “swamp” or “mire” were used to describe wetland areas, wetlands have come to be increasingly valued for the many benefits they provide to society.
- Executive Order (EO) W-59-93. Issued by Governor Wilson in 1993, this EO put in place the “California Wetlands Conservation Policy” which rests on three primary objectives: (a) to ensure no net loss and long-term gain of wetlands acreage and values; (b) to reduce complexity in the administration of state and federal wetlands conservation programs; and (c) to encourage partnerships, landowner incentives, and cooperative planning - the basis of wetlands conservation. The EO calls for, among other things, an inventory and accounting system for wetlands, state assistance for local wetland planning efforts, development of a consistent definition of wetlands, development of consistent standards and guidelines concerning wetland mitigation and monitoring of mitigation and restoration efforts, and increased efficiency of wetlands-related permitting processes.
- State wetland definition. In 2019, the State Water Resources Control Board (State Water Board) adopted a new version of the “State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State” (Procedures) to ensure the continued protection of waters of the state even if protections for federal waters are narrowed by administrative actions or the courts. The Procedures consist of four major elements:
- A wetland definition;
b) A framework for determining if a wetland feature is a water of the state;
c) Wetland delineation procedures; and
d) Procedures for the submittal, review, and approval of applications for Water Quality Certifications and Waste Discharge Requirements for dredge or fill activities.
The Procedures conform to EO W-59-93 and ensure that the regulation of dredge or fill activities will be conducted in a manner “to ensure no overall net loss and long-term net gain in the quantity, quality, and permanence of wetlands acreage and values…”
The State Water Board defines an area as wetland as follows:
An area is wetland if, under normal circumstances, (1) the area has continuous or recurrent saturation of the upper substrate caused by groundwater, or shallow surface water, or both; (2) the duration of such saturation is sufficient to cause anaerobic conditions in the upper substrate; and (3) the area’s vegetation is dominated by hydrophytes or the area lacks vegetation.
The wetland definition encompasses the full range of wetland types commonly recognized in California, including some features not protected under federal law, and reflects current scientific understanding of the formation and functioning of wetlands.
- California Wetlands Monitoring Workgroup (CWMW). The CWMW is a workgroup of the California Water Quality Monitoring Council, to provide the mechanism for coordination and collaboration among federal, state, local, and tribal agencies and non-governmental science support organizations involved in tool development and implementation. According to its website, CWMW’s “mission is to improve the monitoring and assessment of wetland and riparian resources by developing a comprehensive stream, wetland, and riparian area monitoring plan for California and through increasing coordination and cooperation among local, state, and federal agencies, tribes, and non-governmental organizations. The workgroup reviews technical and policy aspects of wetland monitoring tool development, implementation, and use of data to improve wetland management in California.”
Comments
Sackett decision. In May 2023, the United States Supreme Court held that the federal Clean Water Act’s definition of “waters of the United States” extends to only those “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” so that they are “indistinguishable” from those waters. Following the Court’s decision, the Clean Water Act covers only adjoining wetlands, a reading that excludes wetlands separated from jurisdictional waters by man-made dikes or barriers, natural river berms, beach dunes, and the like that had previously been protected by eight different Presidential administrations.
Sackett does not affect the definition of “waters of the state” as used in California state law, however, California will have to rely on its state-level authorities to blunt some of the adverse effects from the loss of wetland protections within the state. This bill could help the state protect wetlands where federal protection is no longer available.
Ensuring no net loss. The language of this bill comes directly from EO W-59-93. Despite the EO, the state, by its own estimation, has seen a net loss of wetlands. Some of that loss comes from acreage, but some also comes from quality. Many compensatory mitigation projects fail to replace the functions lost when wetlands were affected, even when they meet permit requirements in terms of area and/or establishment of wetland vegetation. Part of the problem is that mitigation projects have skewed towards more easily established wetlands like ponds instead of replacing the habitat or ecological functions lost, like forested wetlands. Another problem is that wetland creation or restoration projects rarely function to the same degree as natural, undisturbed wetlands and often fall short in establishing permanent wetland habitat over the entire area affected by the project.
While this bill is a good step in protecting the State’s remaining wetlands, more work is likely needed in order to ensure that the policy of no net loss in “…the quantity, quality, and permanence of wetlands acreage” is implemented across the state.
Related/Prior legislation
AB 2286 (Davis, Chapter 964, Statutes of 2000) required the California Natural Resources Agency to update the wetlands management plan required by the Keene-Nejedly California Wetlands Preservation Act of 1978.
SB 1447 (Kuehl, 2004) would have required the Fish and Game Commission to adopt regulations to protect state regulated wetlands to implement the no net loss of state wetlands policy. The bill was never set for hearing.
SB 1477 (Sher, 2004) would have expanded the jurisdiction of the State Water Board to isolated lakes and streams, wetlands, and riparian areas that may no longer be protected by federal agencies. The bill failed passage in the Assembly Water, Parks and Wildlife Committee.
FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No
SUPPORT: (Verified 8/19/24)
Audubon California (source)
Bolsa Chica Land Trust
California Association of Professional Scientists
California Council of Land Trusts
California Environmental Voters
California Native Plant Society
California Waterfowl Association
Center for Biological Diversity
Clean Water Action
Cleanearth4kids.org
Climate Action California
Defenders of Wildlife
Ducks Unlimited
Endangered Habitats League
Environmental Defense Center
Environmental Protection Information Center
Forests Forever
Friends of the Inyo
Friends of the River
Grassland Water District
Los Angeles Neighborhood Land Trust
Midpeninsula Regional Open Space District
Mono Lake Committee
National Audubon Society
Nature Conservancy
North Fork Mono Tribe
Pacific Forest Trust
Planning and Conservation League
Resource Renewal Institute
San Francisco Baykeeper
Santa Barbara Audubon Society
Santa Clara Valley Audubon Society
Sea and Sage Audubon Society
Sierra Club California
Sierra County Land Trust
Sierra Nevada Alliance
Sonoma Land Trust
The Wildlands Conservancy
Tuolumne River Trust
Yosemite Sequoia Resource Conservation and Development Council
OPPOSITION: (Verified 8/19/24)
None received
ARGUMENTS IN SUPPORT: According to the author, “California has lost more than 90% of its historic wetlands from projects that filled in and converted wetlands to agricultural lands, housing, roads, and other development projects. The Central Valley originally had more than 4 million acres of wetlands that were, at one time, important stopover sites for millions of migratory birds. Today, the extent of seasonal wetlands in the Central Valley has decreased by over 95%, and less than 200,000 acres of seasonal wetlands remain in the Valley. The loss of coastal wetlands is equally alarming with 95% of the formerly abundant lagoons and marshes along California’s 1100-mile coastline lost to destruction. In southern California, studies have shown a loss of between 75 and 85% of historical wetlands. These areas provide important functions, including flood control, improving water quality and water supply, carbon sequestration, recreation, and habitat for imperiled species.”
“California acknowledged the importance of its wetlands when Governor Pete Wilson signed an executive order in 1993 declaring California’s policy of no-net-loss of wetlands. Unfortunately, since that time, state and federal laws and regulations have proved to be inadequate. Every year, California loses more wetland acres than it replaces with restoration or mitigation. As these wetlands disappear, more and more wetland-dependent fish and wildlife slide closer to extinction and migratory birds are crowded into shrinking habitat areas.”
“The U.S. Supreme Court’s decision in Sackett v. EPA, 143 S. Ct. 1322 (2023), has severely restricted the definition of “waters of the U.S.,” leaving many wetlands in California without federal Clean Water Act protection. AB 2875 provides important leadership for other states and provides a model for using state law to shield wetland resources from efforts to erode federal protections. By clearly stating in statute that it is the state’s policy to ensure no net loss and long-term gain in the quantity, quality, and permanence of wetlands acreage and values in California, we will demonstrate our commitment to science-based wetland conservation that benefits our public health and biodiversity and support our efforts to combat climate change and promote adaptation to the inevitable effects from climate change.”
ASSEMBLY FLOOR: 72-0, 5/22/24
AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Dixon, Flora, Mike Fong, Vince Fong, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas
NO VOTE RECORDED: Calderon, Cervantes, Megan Dahle, Essayli, Friedman, Holden, Mathis, Luz Rivas
Prepared by: Paul Jacobs / N.R. & W. / (916) 651-4116
8/20/24 17:14:55
**** END ****
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB 2875 |
THIRD READING
Bill No: AB 2875
Author: Friedman (D)
Introduced: 2/15/24
Vote: 21
SENATE NATURAL RES. & WATER COMMITTEE: 9-0, 6/17/24
AYES: Min, Allen, Eggman, Grove, Hurtado, Laird, Limón, Padilla, Stern
NO VOTE RECORDED: Seyarto, Dahle
ASSEMBLY FLOOR: 72-0, 5/22/24 - See last page for vote
SUBJECT: Wetlands: state policy
SOURCE: Audubon California
DIGEST:
This bill declares it is state policy to ensure no net loss, and long-term gain, in the quantity, quality, and permanence of wetlands acreage.
ANALYSIS:
Existing law:
- Authorizes, under the Porter-Cologne Water Quality Control Act, the State Water Board and regional water quality control boards to regulate discharges of waste that may affect the quality of waters of the state. (Water Code (WC) §§ 13000 et seq.)
- Defines “waters of the state” as any surface water or groundwater, including saline waters, within the boundaries of the state. This definition includes natural wetlands, wetlands created by modification of a surface water of the state, and artificial wetlands that meet certain criteria. (WC § 13050 (e))
- Requires, under the Keene-Nejedly California Wetlands Preservation Act, the Natural Resources Agency to inventory existing wetlands in California and develop a study to identify opportunities to protect and enhance the state’s wetlands. (Public Resources Code §§ 5810 – 5818.2)
- Declares it is state policy to ensure that no net loss of either wetland acreage or habitat value occurs as a result of fill permit activities pursuant to Section 404 of the federal Clean Water Act. (Title 33 U.S.C. § 1344 and Fish and Game Code (FGC) § 1776)
- Defines “wetlands” as lands which may be covered periodically or permanently with shallow water and which include saltwater marshes, freshwater marshes, open or closed brackish water marshes, swamps, mudflats, fens, and vernal pools. (FGC § 2785)
This bill:
- Declares it is state policy to ensure no net loss, and long-term gain, in the quantity, quality, and permanence of wetlands acreage.
- Makes findings and declarations regarding the importance of wetlands and wetland policy.
Background
- Wetlands in California. A wetland encompasses a wide variety of land types and includes desert playas, washes, and oases, marshes, meadows, bogs, fens, sag ponds, vernal pools, tidal flats, tidal marshes, and even wastewater treatment ponds. Generally, wetlands are lower elevation lands that are covered, either seasonally or permanently, with shallow water. Wetlands occur in all regions of California and in both coastal (brackish or saline water) and inland areas (typically freshwater). Wetlands form where rainfall or water runoff accumulates and where groundwater saturates the topsoil.
Prior to European colonization, around 5 million acres of wetlands supported lush aquatic vegetation and provided habitat for hundreds of species of fish and wildlife as well as food, clothing, protection from predators, and transportation for native people. Over 90% of the state's wetlands have been drained, mostly for agricultural purposes, and California now only has about 454,000 acres of nonagricultural wetlands. The remaining wetlands are vulnerable to development, roads, farming practices, hydromodification, pollutants, invasive species, climate change, and a host of other potential stressors.
California's wetlands have significant environmental and economic value for humans and wildlife. These benefits include water storage, groundwater recharge, pollution control, nutrient cycling, shoreline protection, maintenance of biodiversity, recreation, education, and carbon sequestration. While at the time of statehood, wetlands were perceived more negatively and terms such as “swamp” or “mire” were used to describe wetland areas, wetlands have come to be increasingly valued for the many benefits they provide to society.
- Executive Order (EO) W-59-93. Issued by Governor Wilson in 1993, this EO put in place the “California Wetlands Conservation Policy” which rests on three primary objectives: (a) to ensure no net loss and long-term gain of wetlands acreage and values; (b) to reduce complexity in the administration of state and federal wetlands conservation programs; and (c) to encourage partnerships, landowner incentives, and cooperative planning - the basis of wetlands conservation. The EO calls for, among other things, an inventory and accounting system for wetlands, state assistance for local wetland planning efforts, development of a consistent definition of wetlands, development of consistent standards and guidelines concerning wetland mitigation and monitoring of mitigation and restoration efforts, and increased efficiency of wetlands-related permitting processes.
- State wetland definition. In 2019, the State Water Resources Control Board (State Water Board) adopted a new version of the “State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State” (Procedures) to ensure the continued protection of waters of the state even if protections for federal waters are narrowed by administrative actions or the courts. The Procedures consist of four major elements:
- A wetland definition;
b) A framework for determining if a wetland feature is a water of the state;
c) Wetland delineation procedures; and
d) Procedures for the submittal, review, and approval of applications for Water Quality Certifications and Waste Discharge Requirements for dredge or fill activities.
The Procedures conform to EO W-59-93 and ensure that the regulation of dredge or fill activities will be conducted in a manner “to ensure no overall net loss and long-term net gain in the quantity, quality, and permanence of wetlands acreage and values…”
The State Water Board defines an area as wetland as follows:
An area is wetland if, under normal circumstances, (1) the area has continuous or recurrent saturation of the upper substrate caused by groundwater, or shallow surface water, or both; (2) the duration of such saturation is sufficient to cause anaerobic conditions in the upper substrate; and (3) the area’s vegetation is dominated by hydrophytes or the area lacks vegetation.
The wetland definition encompasses the full range of wetland types commonly recognized in California, including some features not protected under federal law, and reflects current scientific understanding of the formation and functioning of wetlands.
- California Wetlands Monitoring Workgroup (CWMW). The CWMW is a workgroup of the California Water Quality Monitoring Council, to provide the mechanism for coordination and collaboration among federal, state, local, and tribal agencies and non-governmental science support organizations involved in tool development and implementation. According to its website, CWMW’s “mission is to improve the monitoring and assessment of wetland and riparian resources by developing a comprehensive stream, wetland, and riparian area monitoring plan for California and through increasing coordination and cooperation among local, state, and federal agencies, tribes, and non-governmental organizations. The workgroup reviews technical and policy aspects of wetland monitoring tool development, implementation, and use of data to improve wetland management in California.”
Comments
Sackett decision. In May 2023, the United States Supreme Court held that the federal Clean Water Act’s definition of “waters of the United States” extends to only those “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” so that they are “indistinguishable” from those waters. Following the Court’s decision, the Clean Water Act covers only adjoining wetlands, a reading that excludes wetlands separated from jurisdictional waters by man-made dikes or barriers, natural river berms, beach dunes, and the like that had previously been protected by eight different Presidential administrations.
Sackett does not affect the definition of “waters of the state” as used in California state law, however, California will have to rely on its state-level authorities to blunt some of the adverse effects from the loss of wetland protections within the state. This bill could help the state protect wetlands where federal protection is no longer available.
Ensuring no net loss. The language of this bill comes directly from EO W-59-93. Despite the EO, the state, by its own estimation, has seen a net loss of wetlands. Some of that loss comes from acreage, but some also comes from quality. Many compensatory mitigation projects fail to replace the functions lost when wetlands were affected, even when they meet permit requirements in terms of area and/or establishment of wetland vegetation. Part of the problem is that mitigation projects have skewed towards more easily established wetlands like ponds instead of replacing the habitat or ecological functions lost, like forested wetlands. Another problem is that wetland creation or restoration projects rarely function to the same degree as natural, undisturbed wetlands and often fall short in establishing permanent wetland habitat over the entire area affected by the project.
While this bill is a good step in protecting the State’s remaining wetlands, more work is likely needed in order to ensure that the policy of no net loss in “…the quantity, quality, and permanence of wetlands acreage” is implemented across the state.
Related/Prior legislation
AB 2286 (Davis, Chapter 964, Statutes of 2000) required the California Natural Resources Agency to update the wetlands management plan required by the Keene-Nejedly California Wetlands Preservation Act of 1978.
SB 1447 (Kuehl, 2004) would have required the Fish and Game Commission to adopt regulations to protect state regulated wetlands to implement the no net loss of state wetlands policy. The bill was never set for hearing.
SB 1477 (Sher, 2004) would have expanded the jurisdiction of the State Water Board to isolated lakes and streams, wetlands, and riparian areas that may no longer be protected by federal agencies. The bill failed passage in the Assembly Water, Parks and Wildlife Committee.
FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No
SUPPORT: (Verified 6/19/24)
Audubon California (source)
Bolsa Chica Land Trust
California Association of Professional Scientists
California Council of Land Trusts
California Environmental Voters
California Native Plant Society
California Waterfowl Association
Center for Biological Diversity
Clean Water Action
Cleanearth4kids.org
Climate Action California
Defenders of Wildlife
Ducks Unlimited
Endangered Habitats League
Environmental Defense Center
Environmental Protection Information Center
Forests Forever
Friends of the Inyo
Friends of the River
Grassland Water District
Los Angeles Neighborhood Land Trust
Midpeninsula Regional Open Space District
Mono Lake Committee
National Audubon Society
Nature Conservancy
North Fork Mono Tribe
Pacific Forest Trust
Planning and Conservation League
Resource Renewal Institute
San Francisco Baykeeper
Santa Barbara Audubon Society
Santa Clara Valley Audubon Society
Sea and Sage Audubon Society
Sierra Club California
Sierra County Land Trust
Sierra Nevada Alliance
Sonoma Land Trust
The Wildlands Conservancy
Tuolumne River Trust
Yosemite Sequoia Resource Conservation and Development Council
OPPOSITION: (Verified 6/19/24)
None received
ARGUMENTS IN SUPPORT: According to the author, “California has lost more than 90% of its historic wetlands from projects that filled in and converted wetlands to agricultural lands, housing, roads, and other development projects. The Central Valley originally had more than 4 million acres of wetlands that were, at one time, important stopover sites for millions of migratory birds. Today, the extent of seasonal wetlands in the Central Valley has decreased by over 95%, and less than 200,000 acres of seasonal wetlands remain in the Valley. The loss of coastal wetlands is equally alarming with 95% of the formerly abundant lagoons and marshes along California’s 1100-mile coastline lost to destruction. In southern California, studies have shown a loss of between 75 and 85% of historical wetlands. These areas provide important functions, including flood control, improving water quality and water supply, carbon sequestration, recreation, and habitat for imperiled species.”
“California acknowledged the importance of its wetlands when Governor Pete Wilson signed an executive order in 1993 declaring California’s policy of no-net-loss of wetlands. Unfortunately, since that time, state and federal laws and regulations have proved to be inadequate. Every year, California loses more wetland acres than it replaces with restoration or mitigation. As these wetlands disappear, more and more wetland-dependent fish and wildlife slide closer to extinction and migratory birds are crowded into shrinking habitat areas.”
“The U.S. Supreme Court’s decision in Sackett v. EPA, 143 S. Ct. 1322 (2023), has severely restricted the definition of “waters of the U.S.,” leaving many wetlands in California without federal Clean Water Act protection. AB 2875 provides important leadership for other states and provides a model for using state law to shield wetland resources from efforts to erode federal protections. By clearly stating in statute that it is the state’s policy to ensure no net loss and long-term gain in the quantity, quality, and permanence of wetlands acreage and values in California, we will demonstrate our commitment to science-based wetland conservation that benefits our public health and biodiversity and support our efforts to combat climate change and promote adaptation to the inevitable effects from climate change.”
ASSEMBLY FLOOR: 72-0, 5/22/24
AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Dixon, Flora, Mike Fong, Vince Fong, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas
NO VOTE RECORDED: Calderon, Cervantes, Megan Dahle, Essayli, Friedman, Holden, Mathis, Luz Rivas
Prepared by: Paul Jacobs / N.R. & W. / (916) 651-4116
6/19/24 11:53:20
**** END ****
SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
Senator Dave Min, Chair
2023 - 2024 Regular
Bill No: AB Hearing Date: June 17, 2024
Author: | Friedman | ||
Version: | February 15, 2024 Introduced | ||
Urgency: | No | Fiscal: | No |
Consultant: | Paul Jacobs | ||
Subject: Wetlands: state policy
SUMMARY
This bill would declare it is state policy to ensure no net loss, and long-term gain, in the quantity, quality, and permanence of wetlands acreage.
BACKGROUND AND EXISTING LAW
Background:
Wetlands in California. A wetland encompasses a wide variety of land types and includes desert playas, washes, and oases, marshes, meadows, bogs, fens, sag ponds, vernal pools, tidal flats, tidal marshes, and even wastewater treatment ponds. Generally, wetlands are lower elevation lands that are covered, either seasonally or permanently, with shallow water. Wetlands occur in all regions of California and in both coastal (brackish or saline water) and inland areas (typically freshwater). Wetlands form where rainfall or water runoff accumulates and where groundwater saturates the topsoil.
Prior to European colonization, around 5 million acres of wetlands supported lush aquatic vegetation and provided habitat for hundreds of species of fish and wildlife as well as food, clothing, protection from predators, and transportation for native people. Over 90% of the state's wetlands have been drained, mostly for agricultural purposes, and California now only has about 454,000 acres of nonagricultural wetlands.[1] The remaining wetlands are vulnerable to development, roads, farming practices, hydromodification, pollutants, invasive species, climate change, and a host of other potential stressors.[2]
California's wetlands have significant environmental and economic value for humans and wildlife. These benefits include water storage, groundwater recharge, pollution control, nutrient cycling, shoreline protection, maintenance of biodiversity, recreation, education, and carbon sequestration. While at the time of statehood, wetlands were perceived more negatively and terms such as “swamp” or “mire” were used to describe wetland areas, wetlands have come to be increasingly valued for the many benefits they provide to society.
Executive Order (EO) W-59-93. Issued by Governor Wilson in 1993, this EO put in place the “California Wetlands Conservation Policy” which rests on three primary objectives: (a) to ensure no net loss and long-term gain of wetlands acreage and values; (b) to reduce complexity in the administration of state and federal wetlands conservation programs; and (c) to encourage partnerships, landowner incentives, and cooperative planning - the basis of wetlands conservation. The EO calls for, among other things, an inventory and accounting system for wetlands, state assistance for local wetland planning efforts, development of a consistent definition of wetlands, development of consistent standards and guidelines concerning wetland mitigation and monitoring of mitigation and restoration efforts, and increased efficiency of wetlands-related permitting processes.
State wetland definition. In 2019, the State Water Resources Control Board (State Water Board) adopted a new version of the “State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State” (Procedures) to ensure the continued protection of waters of the state even if protections for federal waters are narrowed by administrative actions or the courts. The Procedures consist of four major elements:
1) A wetland definition;
2) A framework for determining if a wetland feature is a water of the state;
3) Wetland delineation procedures; and
4) Procedures for the submittal, review, and approval of applications for Water Quality Certifications and Waste Discharge Requirements for dredge or fill activities.
The Procedures conform to EO W-59-93 and ensure that the regulation of dredge or fill activities will be conducted in a manner “to ensure no overall net loss and long-term net gain in the quantity, quality, and permanence of wetlands acreage and values…”
The State Water Board defines an area as wetland as follows:
An area is wetland if, under normal circumstances, (1) the area has continuous or recurrent saturation of the upper substrate caused by groundwater, or shallow surface water, or both; (2) the duration of such saturation is sufficient to cause anaerobic conditions in the upper substrate; and (3) the area’s vegetation is dominated by hydrophytes or the area lacks vegetation.
The wetland definition encompasses the full range of wetland types commonly recognized in California, including some features not protected under federal law, and reflects current scientific understanding of the formation and functioning of wetlands.
California Wetlands Monitoring Workgroup (CWMW). The CWMW is a workgroup of the California Water Quality Monitoring Council, to provide the mechanism for coordination and collaboration among federal, state, local, and tribal agencies and non-governmental science support organizations involved in tool development and implementation. According to its website, CWMW’s “mission is to improve the monitoring and assessment of wetland and riparian resources by developing a comprehensive stream, wetland, and riparian area monitoring plan for California and through increasing coordination and cooperation among local, state, and federal agencies, tribes, and non-governmental organizations. The workgroup reviews technical and policy aspects of wetland monitoring tool development, implementation, and use of data to improve wetland management in California.”
Existing law:
- Authorizes, under the Porter-Cologne Water Quality Control Act, the State Water Board and regional water quality control boards to regulate discharges of waste that may affect the quality of waters of the state. Water Code (WC) §§13000 et seq.
- Defines “waters of the state” as any surface water or groundwater, including saline waters, within the boundaries of the state. This definition includes natural wetlands, wetlands created by modification of a surface water of the state, and artificial wetlands that meet certain criteria. WC §13050 (e).
- Requires, under the Keene-Nejedly California Wetlands Preservation Act, the Natural Resources Agency to inventory existing wetlands in California and develop a study to identify opportunities to protect and enhance the state’s wetlands. Public Resources Code §§5810 – 5818.2.
- Declares it is state policy to ensure that no net loss of either wetland acreage or habitat value occurs as a result of fill permit activities pursuant to Section 404 of the federal Clean Water Act. 33 U.S.C. §1344 and Fish and Game Code (FGC) §1776.
- Defines “wetlands” as lands which may be covered periodically or permanently with shallow water and which include saltwater marshes, freshwater marshes, open or closed brackish water marshes, swamps, mudflats, fens, and vernal pools. FGC §2785.
PROPOSED LAW
This bill would:
- Declare it is state policy to ensure no net loss, and long-term gain, in the quantity, quality, and permanence of wetlands acreage.
- Make findings and declarations regarding the importance of wetlands and wetland policy.
ARGUMENTS IN SUPPORT
According to the author, “California has lost more than 90% of its historic wetlands from projects that filled in and converted wetlands to agricultural lands, housing, roads, and other development projects. The Central Valley originally had more than 4 million acres of wetlands that were, at one time, important stopover sites for millions of migratory birds. Today, the extent of seasonal wetlands in the Central Valley has decreased by over 95%, and less than 200,000 acres of seasonal wetlands remain in the Valley. The loss of coastal wetlands is equally alarming with 95% of the formerly abundant lagoons and marshes along California’s 1100-mile coastline lost to destruction. In southern California, studies have shown a loss of between 75 and 85% of historical wetlands. These areas provide important functions, including flood control, improving water quality and water supply, carbon sequestration, recreation, and habitat for imperiled species.”
“California acknowledged the importance of its wetlands when Governor Pete Wilson signed an executive order in 1993 declaring California’s policy of no-net-loss of wetlands. Unfortunately, since that time, state and federal laws and regulations have proved to be inadequate. Every year, California loses more wetland acres than it replaces with restoration or mitigation. As these wetlands disappear, more and more wetland-dependent fish and wildlife slide closer to extinction and migratory birds are crowded into shrinking habitat areas.”
“The U.S. Supreme Court’s decision in Sackett v. EPA, 143 S. Ct. 1322 (2023), has severely restricted the definition of “waters of the U.S.,” leaving many wetlands in California without federal Clean Water Act protection. AB 2875 provides important leadership for other states and provides a model for using state law to shield wetland resources from efforts to erode federal protections. By clearly stating in statute that it is the state’s policy to ensure no net loss and long-term gain in the quantity, quality, and permanence of wetlands acreage and values in California, we will demonstrate our commitment to science-based wetland conservation that benefits our public health and biodiversity and support our efforts to combat climate change and promote adaptation to the inevitable effects from climate change.”
ARGUMENTS IN OPPOSITION
None Received
COMMENTS
Sackett decision. In May 2023, the United States Supreme Court held that the federal Clean Water Act’s definition of “waters of the United States” extends to only those “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” so that they are “indistinguishable” from those waters. Following the Court’s decision, the Clean Water Act covers only adjoining wetlands, a reading that excludes wetlands separated from jurisdictional waters by man-made dikes or barriers, natural river berms, beach dunes, and the like that had previously been protected by eight different Presidential administrations.
Sackett does not affect the definition of “waters of the state” as used in California state law, however, California will have to rely on its state-level authorities to blunt some of the adverse effects from the loss of wetland protections within the state. This bill could help the state protect wetlands where federal protection is no longer available.
Ensuring no net loss. The language of this bill comes directly from EO W-59-93. Despite the EO, the state, by its own estimation, has seen a net loss of wetlands. Some of that loss comes from acreage, but some also comes from quality. Many compensatory mitigation projects fail to replace the functions lost when wetlands were affected, even when they meet permit requirements in terms of area and/or establishment of wetland vegetation.[3] Part of the problem is that mitigation projects have skewed towards more easily established wetlands like ponds instead of replacing the habitat or ecological functions lost, like forested wetlands. Another problem is that wetland creation or restoration projects rarely function to the same degree as natural, undisturbed wetlands and often fall short in establishing permanent wetland habitat over the entire area affected by the project.
While this bill is a good step in protecting the State’s remaining wetlands, more work is likely needed in order to ensure that the policy of no net loss in “…the quantity, quality, and permanence of wetlands acreage” is implemented across the state.
Prior legislation.
AB 2286 (Davis, Chapter 964, Statutes of 2000) requires the California Natural Resources Agency to update the wetlands management plan required by the Keene-Nejedly California Wetlands Preservation Act of 1978.
SB 1447 (Kuehl, 2004) would have required the Fish and Game Commission to adopt regulations to protect state regulated wetlands to implement the no net loss of state wetlands policy. SB 1447 was never set for hearing.
SB 1477 (Sher, 2004) would have expanded the jurisdiction of the State Water Board to isolated lakes and streams, wetlands, and riparian areas that may no longer be protected by federal agencies. This bill failed passage in the
Assembly Water, Parks and Wildlife Committee.
SUPPORT
Audubon California (sponsor)
Bolsa Chica Land Trust
California Council of Land Trusts
California Environmental Voters (formerly CLCV)
California Native Plant Society
California Waterfowl Association
Center for Biological Diversity
Clean Water Action
Cleanearth4kids.org
Climate Action California
Defenders of Wildlife
Ducks Unlimited
Endangered Habitats League
Environmental Defense Center
Environmental Protection Information Center
Forests Forever
Friends of the Inyo
Friends of the River
Los Angeles Neighborhood Land Trust
Midpeninsula Regional Open Space District
Mono Lake Committee
National Audubon Society
Nature Conservancy
North Fork Mono Tribe
Pacific Forest Trust
Planning and Conservation League
Resource Renewal Institute
San Francisco Baykeeper
Santa Barbara Audubon Society
Santa Clara Valley Audubon Society
Sea and Sage Audubon Society
Sierra Club California
Sierra County Land Trust
Sierra Nevada Alliance
Sonoma Land Trust
The Wildlands Conservancy
Tuolumne River Trust
Yosemite Sequoia Resource Conservation and Development Council
OPPOSITION
None Received
-- END --
According to the US Fish and Wildlife Service: https://www.fws.gov/sites/default/files/documents/National-Water-Summary-Wetland-Resources-california.pdf ↑
See California Wetland Program Plan, 2023-2028: https://www.epa.gov/system/files/documents/2023-07/CA%20WPP_2023_Final_Signed.pdf ↑
See State Water Board Staff Report: Procedures for Discharges of Dredged or Fill Material to Waters of the State: https://www.waterboards.ca.gov/press_room/press_releases/2021/staffreport.pdf ↑
ASSEMBLY THIRD READING
ATR Bill Id:AB 2875
Author:(Friedman)
As Introduced Ver:February 15, 2024
Majority vote
SUMMARY
Declares it is state policy to ensure no net loss, and long-term gain, in the quantity, quality, and permanence of wetlands acreage. Makes findings and declarations regarding the importance of wetlands and wetland policy.
Major Provisions
COMMENTS
"Wetland" encompasses a wide variety of land types and includes desert playas, washes, and oases, marshes, meadows, bogs, fens, sag ponds, vernal pools, tidal flats, tidal marshes, and even wastewater treatment ponds. Generally, wetlands are lower elevation lands that are covered, either seasonally or permanently, with shallow water. Wetlands occur in all regions of California and in both coastal (brackish or saline water) and inland areas (typically freshwater). Wetlands form where rainfall or water runoff accumulates and where groundwater saturates the topsoil. There are approximately 2.9 million acres of wetlands in California (Natural Resources Agency, 2010) representing nearly 3% of the state's land cover. "It is estimated that California has lost more than 90% of its historic wetlands overall, and more than 95% of its coastal wetlands. The remaining wetlands are vulnerable to development, roads, farming practices, hydromodification, pollutants, invasive species, climate change, and a host of other potential stressors" (California Wetland Program Plan, 2023-2028).
While at the time of statehood, wetlands were perceived more negatively and terms such as “swamp” or “mire” might be used to describe wetland areas, wetlands have come to be increasingly valued for the many benefits they provide to society. These benefits include water storage, groundwater recharge, pollution control, nutrient cycling, shoreline protection, maintenance of biodiversity, recreation, education, and carbon sequestration (California Natural Resources Agency, 1990).
Executive Order (EO) W-59-93. Issued by Governor Wilson in 1993, this EO put in place the "California Wetlands Conservation Policy" that rests on three primary objectives: (a) to ensure no net loss and long-term gain of wetlands acreage and values; (b) to reduce complexity in the administration of state and federal wetlands conservation programs; and (c) to encourage partnerships, landowner incentives, and cooperative planning the basis of wetlands conservation. The EO calls for, among other things, an inventory and accounting system for wetlands, state assistance for local wetland planning efforts, development of a consistent definition of wetlands, development of consistent standards and guidelines concerning wetland mitigation and monitoring of mitigation and restoration efforts, and increased efficiency of wetlands-related permitting processes. The language of this bill comes from the EO.
California Wetlands Monitoring Workgroup (CWMW). The CWMW is a workgroup of the California Water Quality Monitoring Council, to provide the mechanism for coordination and collaboration among federal, state, local, and tribal agencies and non-governmental science support organizations involved in tool development and implementation. According to its website, CWMW's "mission is to improve the monitoring and assessment of wetland and riparian resources by developing a comprehensive stream, wetland, and riparian area monitoring plan for California and through increasing coordination and cooperation among local, state, and federal agencies, tribes, and non-governmental organizations. The workgroup reviews technical and policy aspects of wetland monitoring, tool development, and implementation and use of data to improve wetland management in California." CWMW's most recent plan is the "California Wetland Program Plan 2023-2028."
Sackett decision. This decision stems from a case in which the Sackett couple purchased property in Idaho and began backfilling the lot with dirt in preparation for building a home. The U.S. Environmental Protection Agency (EPA) informed the Sackett's that the lot contained wetlands that were Waters of the U.S. (WOTUS) and that, therefore, the backfilling was in violation of the federal Clean Water Act. The Sackett's sued alleging their property did not contain WOTUS as the property was near a ditch that fed into a lake and did not contain wetlands. The federal District Court and Ninth Circuit affirmed the U.S. EPA's jurisdiction, but the Supreme Court overturned the decision in May 2023 finding that WOTUS refers only to "geographic features that are described in ordinary parlance as 'streams, oceans, rivers, and lakes'" and to adjacent wetlands that are "indistinguishable" from those bodies of water due to continuous surface connection. The Sackett decision narrows what was previously understood to be WOTUS and limits U.S. EPA jurisdiction over many wetlands. In response, State Water Resources Control Board (State Water Board) has made a budget request of $6.1 million in fiscal year (FY) 2024-25 and $7 million ongoing for 38 new positions in anticipation of increased workload related to water quality permitting and enforcement of "waters of the state" that had been considered WOTUS (and, therefore, subject to jurisdiction of U.S. EPA and U.S. Army Corps of Engineers) until the Sackett decision.
According to the Author
"California has lost more than 90% of its historic wetlands from projects that filled in and converted wetlands to agricultural lands, housing, roads, and other development projects;" this is problematic because wetlands "provide important functions, including flood control, improving water quality and water supply, carbon sequestration, recreation, and habitat for imperiled species."
"California acknowledged the importance of its wetlands when Governor Pete Wilson signed an executive order in 1993 declaring California's policy of no-net-loss of wetlands. Unfortunately, since that time, state and federal laws and regulations have proved to be inadequate. Every year, California loses more wetland acres than it replaces with restoration or mitigation. As these wetlands disappear, more and more wetland-dependent fish and wildlife slide closer to extinction and migratory birds are crowded into shrinking habitat areas."
Arguments in Support
This bill is sponsored by Audubon California and is supported by a number of environmental and conservation organizations. Audubon et al. argue that this bill codifies the state's long-standing "no net loss policy" and that it is as important as ever given that less than 10% of the state's historic wetlands remain. Audubon points out that wetlands provide many benefits: "Wetlands are among the most productive ecosystems in the world, comparable to rain forests and coral reefs, and can be thought of as "biological supermarkets." Wetlands function as natural sponges that trap and slowly release surface water, rain, snowmelt, groundwater, and flood waters. Trees, root mats and other wetland vegetation also slow the speed of flood waters and distribute them more slowly over the floodplain. This combination of water storage and braking action lowers flood heights and reduces erosion. Coastal wetlands also provide natural barriers to shoreline erosion. Finally, wetlands filter water, providing natural water quality improvement." Audubon maintains that this bill "will demonstrate our commitment to science-based wetland conservation that benefits our public health and biodiversity and supports our efforts to combat climate change and promote adaptation to the inevitable effects from climate change."
Arguments in Opposition
None on file.
FISCAL COMMENTS
According to the Assembly Appropriations Committee:
- Costs and cost pressures of an unknown but significant amount, likely in the low to tens of millions of dollars, for state agencies to implement this policy (General Fund and special funds).
- A recent Supreme Court ruling reduces federal jurisdiction over numerous waterbodies, including certain wetlands. In response, the State Water Board submitted a budget change proposal (BCP) as part of the Governor's proposed FY 2024-25 budget requesting $6.1 million in FY 2024-25, $7 million annually thereafter, and 38 permanent positions phased in over two years, to conduct water quality permitting and enforcement work that had historically been conducted by the U.S. Army Corps of Engineers and the U.S. EPA. As outlined in the BCP, a significant portion of the requested funding is intended for wetland protection.
VOTES
ASM WATER, PARKS, AND WILDLIFE: 14-0-1
YES: Papan, Addis, Alanis, Alvarez, Bennett, Bonta, Gallagher, Davies, Garcia, Hart, Luz Rivas, Schiavo, Villapudua, Weber
ABS, ABST OR NV: Mathis
ASM APPROPRIATIONS: 15-0-0
YES: Wicks, Sanchez, Arambula, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Grayson, Haney, Hart, Jim Patterson, Pellerin, Ta, Villapudua
UPDATED
VERSION: February 15, 2024
CONSULTANT: Pablo Garza / W., P., & W. / (916) 319-2096 FN: 0003145
Date of Hearing: April 17, 2024
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Buffy Wicks, Chair
ABPCA Bill Id:AB 2875
Author:(Friedman) – As Introduced Ver:February 15, 2024
Policy Committee: | Water, Parks and Wildlife | Vote: | 14 - 0 |
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Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill declares it is the policy of the state to ensure no net loss and long-term gain in the quantity, quality, and permanence of wetlands acreage and values in California.
FISCAL EFFECT:
Costs and cost pressures of an unknown but significant amount, likely in the low to tens of millions of dollars, for state agencies to implement this policy (General Fund and special funds). For a list of state agencies that are involved in wetland protection in California, please see the background below. According to the Legislative Analyst’s Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.
A recent Supreme Court ruling reduces federal jurisdiction over numerous waterbodies, including certain wetlands. In response, the State Water Resources Control Board (State Water Board) submitted a budget change proposal (BCP) as part of the Governor’s proposed fiscal year 2024-25 budget requesting $6.1 million in FY 2024-25, $7 million annually thereafter, and 38 permanent positions phased in over two years, to conduct water quality permitting and enforcement work that had historically been conducted by the United States Army Corps of Engineers and the United States Environmental Protection Agency. As outlined in the BCP, a significant portion of the requested funding is intended for wetland protection.
COMMENTS:
1) Purpose. According to the author:
California acknowledged the importance of its wetlands when Governor Pete Wilson signed an executive order in 1993 declaring California’s policy of no-net-loss of wetlands. Unfortunately, since that time, state and federal laws and regulations have proved to be inadequate. Every year, California loses more wetland acres than it replaces with restoration or mitigation…[This bill] provides important leadership for other states and provides a model for using state law to shield wetland resources from efforts to erode federal protections.
2) Background.
Wetlands. As described by the California Water Quality Monitoring Council (CWQMC), wetlands provide important habitat for birds, fish, and other wildlife. They support local food webs and contribute to flood protection, groundwater recharge, shoreline protection, and water filtration. California has lost more than 90% of its historical wetlands, and today, many remaining wetlands are threatened. Wetlands continue to be drained for agriculture, filled for development, or disturbed by modifications to the watershed such as dams or water diversions. Climate change poses a significant threat, and wetlands along the coast face flooding from potential sea level rise.
Executive Order (EO) W-59-93. In 1993, Governor Pete Wilson signed EO W-59-93, the state’s “no net loss” policy for wetlands, establishing a State Wetland Conservation Policy (SWCP) and providing comprehensive direction for the coordination of statewide activities for the preservation and protection of wetland habitats. The California Natural Resources Agency (CNRA) and the California Environmental Protection Agency are required to jointly implement the goals of the SWCP.
State Agencies Involved in Wetland Protection. The California Wetland Monitoring Workgroup (CWMW) is a workgroup of the CWQMC. Its mission is to improve the monitoring and assessment of wetland and riparian resources by developing a comprehensive stream, wetland, and riparian area monitoring plan for California and by increasing coordination and cooperation among local, state, and federal agencies, tribes, and non-governmental organizations to improve wetland management in California. CWMW’s most recent plan is the “California Wetland Program Plan 2023-2028.” The following state agencies participate in the CWMW: CNRA, State Water Board and several regional water boards, California Coastal Commission, California Department of Fish and Wildlife, California Department of Parks and Recreation, California Department of Transportation, California Department of Water Resources, State Lands Commission, State Coastal Conservancy, and Delta Conservancy.
Sackett v. EPA. In this 2023 Supreme Court decision, the court held that for a wetland to be protected under federal law, it must be indistinguishable from the water of the U.S. to which it is connected. A statement by the State Water Board notes this ruling effectively “requires California to increasingly rely on its own regulatory wetlands protection programs, deprives the state of expertise previously provided by the U.S. Army Corps of Engineers and affects multiple neighboring states.” With the substantive reinterpretation of the federal Clean Water Act set forth in the Sackett ruling, the State Water Board and the nine regional water boards will need to restructure their programs to reflect the new bounds on federal jurisdiction, which will require significant resources. The aforementioned BCP lists several ways in which the Sackett ruling impacts the water boards’ resources, including an expansion of inspection and enforcement activities to replace US EPA actions on waters that are no longer under federal jurisdiction, as well as “replacing Clean Water Act enforcement authorities with less efficient and more resource intensive state authorities.”
Analysis Prepared by: Nikita Koraddi / APPR. / (916) 319-2081
Date of Hearing: April 9, 2024
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Diane Papan, Chair
ABPCA Bill Id:AB 2875 (
Author:Friedman) – As Introduced Ver:February 15, 2024
SUBJECT: Wetlands: state policy
SUMMARY: Declares it is state policy to ensure no net loss, and long-term gain, in the quantity, quality, and permanence of wetlands acreage. Makes findings and declarations regarding the importance of wetlands and wetland policy.
EXISTING LAW:
- Authorizes, under the Porter-Cologne Water Quality Control Act, the State Water Quality Control Board (State Water Board) and regional water quality control boards to regulate discharges of waste that may affect the quality of waters of the state (Water Code § 13000 et seq.).
- Defines “waters of the state” as any surface water or groundwater, including saline waters, within the boundaries of the state. This definition includes natural wetlands, wetlands created by modification of a surface water of the state, and artificial wetlands that meet certain criteria [Water Code § 13050 (e)].
- Requires, under the Keene-Nejedly California Wetlands Preservation Act, the Natural Resources Agency to inventory existing wetlands in California and develop a study to identify opportunities to protect and enhance the state’s wetlands (Public Resources Code §§ 5810 – 5818.2).
- Declares it is state policy to ensure that no net loss of either wetland acreage or habitat value occurs as a result of fill permit activities pursuant to Section 404 of the federal Clean Water Act (33 U.S.C. § 1344) (Fish and Game Code § 1776).
- Defines “wetlands” as lands which may be covered periodically or permanently with shallow water and which include saltwater marshes, freshwater marshes, open or closed brackish water marshes, swamps, mudflats, fens, and vernal pools (Fish and Game Code § 2785).
FISCAL EFFECT: Unknown. This bill is keyed non-fiscal.
COMMENTS:
- Purpose of this bill. This bill codifies existing state policy relating to wetlands. According to the author, this is necessary in the wake of the U.S. Supreme Court’s decision in Sackett v. EPA, 143 S. Ct. 1322 (2023) (Sackett decision) which narrowed the definition of “waters of the United States” (WOTUS) and leaves many wetlands in California without protection under the federal Clean Water Act.
The author notes that “California has lost more than 90% of its historic wetlands from projects that filled in and converted wetlands to agricultural lands, housing, roads, and other development projects” and that this is problematic because wetlands “provide important functions, including flood control, improving water quality and water supply, carbon sequestration, recreation, and habitat for imperiled species.”
The author maintains that “California acknowledged the importance of its wetlands when Governor Pete Wilson signed an executive order in 1993 declaring California’s policy of no-net-loss of wetlands. Unfortunately, since that time, state and federal laws and regulations have proved to be inadequate. Every year, California loses more wetland acres than it replaces with restoration or mitigation. As these wetlands disappear, more and more wetland-dependent fish and wildlife slide closer to extinction and migratory birds are crowded into shrinking habitat areas.”
The author argues that this bill “provides important leadership for other states and provides a model for using state law to shield wetland resources from efforts to erode federal protections. By clearly stating in statute that it is the state’s policy to ensure no net loss and long-term gain in the quantity, quality, and permanence of wetlands acreage and values in California, we will demonstrate our commitment to science-based wetland conservation that benefits our public health and biodiversity, and support our efforts to combat climate change and promote adaptation to the inevitable effects from climate change.” - Background. “Wetland” encompasses a wide variety of land types and include desert playas, washes, and oases, marshes, meadows, bogs, fens, sag ponds, vernal pools, tidal flats, tidal marshes, and even wastewater treatment ponds. Generally, wetlands are lower elevation lands that are covered, either seasonally or permanently, with shallow water. Wetlands occur in all regions of California and in both coastal (brackish or saline water) and inland areas (typically freshwater). Wetlands form where rainfall or water runoff accumulates and where groundwater saturates the topsoil. There are approximately 2.9 million acres of wetlands in California (Natural Resources Agency, 2010) representing nearly 3% of the state’s land cover. “It is estimated that California has lost more than 90% of its historic wetlands overall, and more than 95% of its coastal wetlands. The remaining wetlands are vulnerable to development, roads, farming practices, hydromodification, pollutants, invasive species, climate change, and a host of other potential stressors” (California Wetland Program Plan, 2023-2028).
While at the time of statehood, wetlands were perceived more negatively and terms such as “swamp” or “mire” might be used to describe wetland areas, wetlands have come to be increasingly valued for the many benefits they provide to society. These benefits include water storage, groundwater recharge, pollution control, nutrient cycling, shoreline protection, maintenance of biodiversity, recreation, education, and carbon sequestration (California Natural Resources Agency, 1990).
Executive Order (EO) W-59-93. Issued by Governor Wilson in 1993, this EO put in place the “California Wetlands Conservation Policy” that rests on three primary objectives: (a) to ensure no net loss and long-term gain of wetlands acreage and values; (b) to reduce complexity in the administration of state and federal wetlands conservation programs; and (c) to encourage partnerships, landowner incentives, and cooperative planning the basis of wetlands conservation. The EO calls for, among other things, an inventory and accounting system for wetlands, state assistance for local wetland planning efforts, development of a consistent definition of wetlands, development of consistent standards and guidelines concerning wetland mitigation and monitoring of mitigation and restoration efforts, and increased efficiency of wetlands-related permitting processes. The language of this bill comes from the EO.
California Wetlands Monitoring Workgroup (CWMW). The CWMW is a workgroup of the California Water Quality Monitoring Council, to provide the mechanism for coordination and collaboration among federal, state, local and tribal agencies and non-governmental science support organizations involved in tool development and implementation. According to its website, CWMW’s “mission is to improve the monitoring and assessment of wetland and riparian resources by developing a comprehensive stream, wetland, and riparian area monitoring plan for California and through increasing coordination and cooperation among local, state, and federal agencies, tribes, and non-governmental organizations. The workgroup reviews technical and policy aspects of wetland monitoring tool development, implementation and use of data to improve wetland management in California.” CWMW’s most recent plan is the “California Wetland Program Plan 2023-2028.”
Sackett decision. This decision stems from a case in which the Sackett couple purchased property in Idaho and began backfilling the lot with dirt in preparation for building a home. The U.S. Environmental Protection Agency (EPA) informed the Sackett’s that the lot contained wetlands that were WOTUS and that, therefore, the backfilling was in violation of the federal Clean Water Act. The Sackett’s sued alleging their property did not contain WOTUS as the property was near a ditch that fed into a lake and did not contain wetlands. The federal District Court and Ninth Circuit affirmed the U.S. EPA’s jurisdiction, but the Supreme Court overturned the decision in May 2023 finding that WOTUS refers only to “geographic features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’” and to adjacent wetlands that are “indistinguishable” from those bodies of water due to continuous surface connection. The Sackett decision narrows what was previously understood to be WOTUS and limits U.S. EPA jurisdiction over many wetlands. In response, the State Water Board has made a budget request of $6.1 million in FY 2024-25 and $7 million ongoing for 38 new positions in anticipation of increased workload related to water quality permitting and enforcement of “waters of the state” that had been considered WOTUS (and, therefore, subject to jurisdiction of U.S. EPA and U.S. Army Corps of Engineers) until the Sackett decision. - Arguments in support. This bill is sponsored by Audubon California and is supported by a number of environmental and conservation organizations. Audubon et al. argue that this bill codifies the state’s long-standing “no net loss policy” and that it is as important as ever given that less than 10% of the state’s historic wetlands remain. Audubon points out that wetlands provide many benefits: “Wetlands are among the most productive ecosystems in the world, comparable to rain forests and coral reefs, and can be thought of as "biological supermarkets." Wetlands function as natural sponges that trap and slowly release surface water, rain, snowmelt, groundwater, and flood waters. Trees, root mats and other wetland vegetation also slow the speed of flood waters and distribute them more slowly over the floodplain. This combination of water storage and braking action lowers flood heights and reduces erosion. Coastal wetlands also provide natural barriers to shoreline erosion. Finally, wetlands filter water, providing natural water quality improvement.” Audubon maintains that this bill “will demonstrate our commitment to science-based wetland conservation that benefits our public health and biodiversity and supports our efforts to combat climate change and promote adaptation to the inevitable effects from climate change.”
- Related legislation. SB 1447 (Kuehl) of 2004 would have required the Fish and Game Commission to adopt regulations to protect state regulated wetlands to implement the no net loss of state wetlands policy. SB 1447 was never set for hearing.
AB 2286 (Davis), Chapter 964, Statutes of 2000, requires the Natural Resources Agency to update the wetlands management plan required by the Keene-Nejedly California Wetlands Preservation Act of 1978.
REGISTERED SUPPORT / OPPOSITION:
Support
California Audubon (sponsor)
Bolsa Chica Land Trust
California Association of Professional Scientists
California Council of Land Trusts
California Environmental Voters (formerly CLCV)
California Native Plant Society, Alta Peak Chapter
California Waterfowl Association
Center for Biological Diversity
Clean Water Action
Cleanearth4kids.org
Climate Action California
Defenders of Wildlife
Environmental Protection Information Center
Forests Forever
Friends of The Inyo
Friends of The River
Los Angeles Neighborhood Land Trust
Midpeninsula Regional Open Space District
Nature Conservancy, The
Pacific Forest Trust
Planning and Conservation League
Resource Renewal Institute
San Francisco Baykeeper
Santa Barbara Audubon Society
Santa Clara Valley Audubon Society
Sea and Sage Audubon Society
Sierra Club California
Sonoma Land Trust
Tuolumne River Trust
Wildlands Conservancy, The
Opposition
None on file
Analysis Prepared by: Pablo Garza / W., P., & W. / (916) 319-2096
Bill Author
Bill Co-Author(s):