In April 2019, the California State Water Resources Control Board (State Board) unanimously approved a comprehensive new legal framework for protecting California’s wetlands. California has lost approximately 90% of its historic wetland areas, which have important water quality, species habitat and other environmental and economic benefits. The new rules, in development for about 15 years, are designed to “fill the gap” in preserving California’s wetlands as the federal courts (and more recently the Trump Administration) have, in the view of California’s regulators, been rolling back federal wetlands protections.

California has never had its own comprehensive wetlands protection law. Rather, like almost all states, it has relied primarily on its role in the Section 404 wetlands program of the federal Clean Water Act (CWA). Under the “Section 401 certification” process, the U.S. Army Corps of Engineers must formally consult with a state during the Section 404 process, and the state has the right to impose permit conditions to ensure that the state’s water quality standards are protected. With few exceptions, the Corps must incorporate these conditions into the federal wetlands permit. Although California also had some procedures for protecting “waters of the state,” they were interpreted and applied inconsistently by the Regional Water Boards.