By Kerry Shapiro, Martin Stratte and Daniel Quinley
On December 18, 2020, the Sacramento County Superior Court prohibited the State Water Resources Control Board (“SWRCB”) from implementing California’s new wetlands and “waters of the state” protection program, and limited SWRCB’s application of the regulatory program to only waters already protected under the federal Clean Water Act. The court’s ruling essentially invalidates SWRCB’s nearly two-decade-long effort to fill the gap left by the shrinking scope of regulation under the federal Clean Water Act following the Supreme Court’s 2001 decision in Solid Waste Agency of Northern Cook Cty. v. U.S. Army Corps of Engineers (“SWANCC”).
In January 2019, SWRCB hastened its adoption of its new regulations – the “Procedures for Discharges of Dredged or Fill Material to Waters of the State” (“Procedures”) – after the Trump Administration introduced the new “Navigable Waters Protection Rule” to regulate pollutant discharges to Waters of the United States (“New WOTUS Rule”). The New WOTUS Rule limits the reach of the federal Clean Water Act and is presently in effect as of June 22, 2020.
SWRCB adopted the Procedures in April 2019 to supplement state-perceived gaps in federal Clean Water Act regulation for proposed discharges of dredged or fill material to broadly defined “waters of the state,” including all wetlands within California – not just wetlands considered “Waters of the United States.” The Procedures became effective in May 2020 and amended two statewide Water Quality Control Plans (“WQCPs”) for (i) Ocean Waters and (ii) Inland Surface Waters and Enclosed Bays and Estuaries of California, which, among other things, set applicable water quality objectives for those waters.
In May 2019, the petitioner, San Joaquin Tributaries Authority, a Joint Powers Authority (“Petitioner”), filed a petition for writ of mandate challenging SWRCB’s adoption of the Procedures on both substantive and procedural grounds. Although the court ruled in favor of Petitioner with respect to only one of its four arguments, the implications are significant, because the court held that SWRCB lacked authority under the Clean Water Act and the Porter-Cologne Water Quality Act (“Porter-Cologne”) to apply the Procedures to non-federal waters.
Specifically, the court agreed with Petitioner’s contentions that SWRCB lacked authority under Porter-Cologne to adopt a statewide WQCP under its policy-making authority and was instead limited to establishing statewide WQCPs for only those areas specifically identified by Porter-Cologne—i.e., “Waters of the United States” and for “ocean waters,” including non-federal ocean waters. Thus, to the extent the Procedures were intended to regulate non-ocean and non-federal waters (primarily ephemeral streams not otherwise connected to traditionally navigable waters and certain wetlands), SWRCB lacked the necessary authority to do so, because Porter-Cologne vests the Regional Boards – not SWRCB – with primary responsibility for establishing those WQCPs.
Although the remainder of Petitioner’s arguments were either denied or deemed not ripe, the court’s ruling (presuming it withstands any forthcoming appeal) in favor of Petitioner sends a signal to SWRCB that its hasty promulgation of the Procedures was ill-conceived and that under state law, it is not the appropriate agency to fill in any gaps for regulation of state waters excluded from regulation under the federal Clean Water Act. Note that, although the court invalidated the application of the Procedures to certain waters, this ruling does not alleviate dischargers from obtaining any necessary permits from SWRCB or the Regional Boards.
Kerry Shapiro chairs the Natural Resources & Mining Practice Group at Jeffer Mangels Butler & Mitchell LLP. He has represented the mining, construction and building materials industries on mineral extraction and land development projects for more than 25 years. Kerry also serves as General Counsel to the California Construction and Industrial Materials Association (CalCIMA). Contact Kerry at KShapiro@jmbm.com.
Daniel Quinley is an environmental and land use lawyer at Jeffer Mangels Butler & MItchell LLP. He represents clients in complex regulatory, permitting, policy, and litigation arenas. Contact Dan DQuinley@jmbm.com.
JMBM’s Natural Resources & Mining Law Group
Jeffer Mangels Butler & Mitchell LLP has one of California’s leading natural resources and mining law practice groups. The group is comprised of lawyers with over 25 years of practice in law firms, government, and consulting, and provides companies and trade associations with unparalleled counseling, compliance, and litigation services in nearly every area of federal and California natural resources and mining law.