On December 17, 2020, the Sacramento County Superior Court substantially limited the scope of waters to which the State Procedures for Discharges of Dredged and Fill Material (“Procedures”) apply through its decision in San Joaquin Tributaries Authority v. State Water Resources Control Board (Case No. 34-2019-80003133). According to the Court, the State Water Resources Control Board (“State Water Board”) exceeded its policy-making and water quality control plan development authority, resulting in the restriction of the Procedures to those waters regulated under the Federal Water Pollution Control Act or Clean Water Act (“CWA”) and State “ocean waters.” The Court’s decision significantly narrows the delta between the discharges of dredged and fill material regulated exclusively under the Procedures, and those that will now be regulated under both federal and state water quality control laws. However, because the Court’s opinion did not invalidate the Procedures in their entirety, permittees will still need to evaluate application of the Procedures, though to a constricted set of waters and aquatic features.
On April 2, 2019, the State Water Board adopted the Procedures, which regulate discharges of dredged and fill material to waters of the State, including those not subject to federal jurisdiction, and also set forth a State “wetland” definition, which is broader than those wetland features regulated under federal law. The Procedures grew out of the State Water Board’s attempt to fill a perceived regulatory gap created by a series of Supreme Court decisions, which refined the scope of federally jurisdictional waters subject to regulation under the CWA. The State Water Board sought to apply the Procedures to all waters of the State, which broadly encompass “any surface water or groundwater, including saline waters, within the boundaries of the state” (Water Code § 13050(e)), by incorporating their content into the Water Quality Control Plans for: (1) Inland Surface Waters Enclosed Bays and Estuaries, and (2) Ocean Waters of California. An in-depth summary of the Procedures is available here.
On May 9, 2019, the San Joaquin Tributaries Authority (“SJTA”), a Joint Powers Authority comprised of several entities, not all of which participated in the action, filed a petition for writ of mandate (“Writ Petition”) seeking to invalidate the Procedures on several grounds. The Writ Petition set forth four separate claims, including the following, which are most pertinent to the substance of the Court’s decision:
- The State Water Board exceeded its authority under Water Code section 13170 in adopting the Procedures. Pursuant to Water Code section 13170 the State Water Board only has the authority to develop water quality control plans “for waters for which water quality standards are required by the Federal Water Pollution Control Act [CWA] and acts amendatory thereof or supplementary thereto.”
- The State Water Board exceeded its authority under the Porter-Cologne Water Quality Control Act (“Porter-Cologne Act”) by seeking to regulate discharges of dredge and fill material. Under the Porter-Cologne Act, the State Water Board may regulate discharges of “waste” that may affect the quality of waters of the State. Water Code section 13050(d) defines waste to “include sewage and any and all other waste substances, liquid, solid, gaseous, or radioactive, associated with human habitation, or of human or animal origin, or from any producing, manufacturing, or processing operation, including waste placed within containers of whatever nature prior to, and for purposes of, disposal.”
A full summary of the SJTA claims is available here.
On May 28, 2020, the Procedures became effective, thus, establishing a complicated framework for evaluating the jurisdictional status of aquatic features, and applying new application and mitigation requirements to discharges of dredged and fill material, which was largely duplicative of other regulatory regimes, such as the CWA section 404 permitting requirement, and the California Department of Fish and Wildlife Streambed Alteration Agreement obligations.
Most notably, the Court agreed with the SJTA on its claim that the State Water Board lacked the authority to amend the Water Quality Control Plan for Inland Surface Waters Enclosed Bays and Estuaries (the “State Implementation Plan” or “SIP”) because that plan regulates waters defined more expansively than those described in Water Code section 13170. Specifically, the Court invalidated the Procedures as applied to inland waters of the State that are not also considered Waters of the United States regulated pursuant to the CWA.
According to the Court, Water Code section 13170 provides the State Water Board with the authority to develop water quality control plans for those waters regulated by the CWA alone. Whereas the Porter-Cologne Act, in Water Code section 13240, delegates to each of the nine regional boards primary responsibility for establishing water quality control plans applicable to waters of the State within their respective regions. Water Code section 13240 provides in pertinent part, “[e]ach regional board shall formulate and adopt water quality control plans for all areas within the region. Such plans shall conform to the policies set forth in Chapter 1 (commencing with Section 13000) of this division and any state policy for water quality control.”
Further, the Court rejected the State Water Board’s argument that Water Code section 13140 provides authority broader than Water Code section 13170, to generally establish policies for water quality control. The Court disagreed, indicating that the State Water Board’s policy-making authority pursuant to Water Code section 13140 does not extend to modifying water quality control plans, based on the definition of a “state policy for water quality control,” as set forth in Water Code section 13142. Moreover, the Court was unconvinced by Amici arguments that when taken together, Water Code sections 13140 and 13170 provide the State Water Board with sufficient authority to develop and amend water quality control plans.
The Court did however determine that the State Water Board had the authority to adopt water quality control plans for all ocean waters pursuant to Water Code section 13170.2. Thus, the Court upheld the State Water Board’s incorporation of the Procedures into the Water Quality Control Plan for Ocean Waters of California, and its application to all waters of the State covered thereby.
Finally, the Court reached the issue of whether the waste regulated pursuant to Porter-Cologne extends to “dredged and/or fill material” as those terms are defined under federal regulations incorporated by reference into the content of the Procedures. Here, counsel for the State Water Board and SJTA agreed that the Porter-Cologne Act’s definition of “waste” extended to at least one category of dredged and fill material – that which is associated with “human habitation.” Consequently, because at least one variety of dredged or fill material fell within the types of waste that the Porter-Cologne Act regulates, the Court denied this claim. The Court did, however, indicate that certain other types of dredged or fill material may not be of the type that the Porter-Cologne Act was intended to regulate, leaving room for further negotiation or litigation of the issue on a case-by-case basis.
The Court’s opinion largely invalidates the Procedures and results in their non-application to non-tidal waters of the State that lie outside the jurisdiction of the CWA. The regulated community will now need to revisit any revised jurisdictional delineations they performed to come into compliance with the Procedures’ requirements. However, without a project permitting deadline looming on the horizon, prospective permittees would be wise to wait prior to performing such delineations, given potential changes to the Waters of the United States definition anticipated from a Biden Administration, as well as a forthcoming decision in Sweeney et al. v. San Francisco Bay Conservation and Development Commission et al. (Case No. A153582), which has an oral argument scheduled for February 11, 2021. The case will further take up the issue of the extent to which the Porter-Cologne Act allows for the regulation of discharges of dredged or fill material, and could therefore potentially further undermine the legitimacy of the Procedures by calling into question their application to waters of the State that are also regulated under the Clean Water Act.