The Crush - April 2019 - 4

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CAWG Obtains Critical Protections for Ag in WOTS
WOTS WAS AMENDED TO INCLUDE CAWG-REQUESTED LANGUAGE
By Michael Miiller
In April 2007, the State Water Resources Control Board (board)
began its formal efforts to create a Wetland and Riparian Area
Protection Proposed Policy. This month - 12 years later - the
board approved its State Wetland Definition and Procedures
for Discharges of Dredged or Fill Material to Waters of the State
(WOTS). CAWG provided a brief summary of this in our eNews a
few weeks ago. Below is more detailed information.
Early on, when this regulation was first discussed, board staff
and members stated they never intended for WOTS to apply
to ag. However, and to the contrary, the several versions of the
proposed WOTS regulation all included loopholes, ambiguities,
uncertainties, contradictions, and subjective technical language
that would have required growers to engage in a lengthy and
costly permit process for routine annual vineyard activities.
Drafts of WOTS prior to March 2019 would have created the
following problems:
* To be considered a prior converted cropland (and thereby
exempt from the WOTS permitting process), WOTS would
have required certification by USDA Natural Resources
Conservation Service, U.S. EPA or the Army Corps of
Engineers. This was problematic as very few vineyards are
certified as prior converted croplands and it could take years to
receive a certification. Additionally, EPA and the Army Corps
of Engineers are not authorized under federal law to provide
such certifications. Consequently, many vineyards would be
inadvertently subject to WOTS permit requirements.
* WOTS was written very loosely as to what information would
be needed to apply for a permit, the timeline needed to process
a permit, the analysis of alternatives to the project for which a
permit may be needed, the mitigation necessary, and the effects
of the project on climate change. Consequently, a grower would
need to spend tens of thousands of dollars just to determine if
and how WOTS may apply to his or her farming activities.
* WOTS defined wetlands in a brand new way that was quite
different from how USDA, U.S. EPA or the Army Corps
of Engineers define wetlands. For example: Under federal
regulations, there must be hydrophytic vegetation on the land
for it to be a wetland. Absent hydrophytic vegetation, there is
no wetland. However, under WOTS, hydrophytic vegetation
need not be present for the land to be considered a wetland.
This means that land that has been farmed legally under
4 / APRIL 2019

federal regulations for
decades could suddenly
be considered a wetland
and would be subject to
a new state permitting
process.
* Additionally, WOTS
created a new category
of "artificial wetland."
This could include drainage ditches, irrigation ponds and
other sources of irrigated water. Maintenance of any of these
"artificial wetlands" would be subject to a permit under WOTS.
CAWG pushed back hard with the assistance of a team of
lawyers, ag experts, water experts, and a broad-based coalition
led by Cliff Moriyama of The Gualco Group, CAWG's contract
lobbyist. After much deliberation and advocacy, the board
staff understood our concerns and board members asked for
substantial changes to the proposed regulation.
The board's stated intent to not apply WOTS to ag was finally
realized in late March and was formally approved this month.
After intense efforts by CAWG and our ag industry partners,
especially in the last three months, WOTS was amended
to include CAWG-requested language to protect ag. These
protections include, but are not limited to, the following:
* Prior converted croplands are exempt from WOTS.
* Ag ditches and irrigated ag features are exempt from WOTS.
* WOTS will be applied consistent with federal procedures.
* Ag will participate in the development of guidelines for how
WOTS will be implemented, applied and enforced by regional
water boards.
* Implementation of WOTS will be closely monitored and
an annual report will be prepared in consultation with
stakeholders, including the ag industry.
If WOTS did not include these protections, the effects on
growers could have been catastrophic.
For several years, winegrape grower and former CAWG board
member Brad Goehring has been diligently working on WOTS.
Goehring has worked closely with CAWG staff and our ag
partners and his engagement was instrumental in obtaining
critical protections for ag. CAWG thanks Goehring for his efforts.

https://www.waterboards.ca.gov/water_issues/programs/cwa401/docs/wrapp/wetland_ripairan_policy_rev2.pdf https://www.waterboards.ca.gov/water_issues/programs/cwa401/docs/wrapp/wetland_ripairan_policy_rev2.pdf https://www.waterboards.ca.gov/press_room/press_releases/2019/pr04022019_swrcb_dredge_fill.pdf https://www.waterboards.ca.gov/water_issues/programs/cwa401/docs/wrapp/df_procedures_clean.pdf

The Crush - April 2019

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