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State Water Board Announces Intent to Enforce 2019 Procedures for Discharges of Dredged or Fill Material as “State Policy”

State Water  Board Announces Intent to Enforce 2019 Procedures for Discharges of Dredged or Fill Material as State Policy

By Kerry Shapiro, Martin Stratte, and Daniel Quinley

On February 3, 2021, the State Water Resources Control Board (“SWRCB”) issued a “Notice of Opportunity to Comment and Notice of Public Hearing and Consideration of Adoption” (“Notice”) of a resolution “to confirm that the State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State (Procedures) are in effect as state policy for water quality control.”  The Notice states that SWRCB will consider the resolution at a public video/teleconference meeting on April 6, 2021.

The Notice was issued in response to a January 26, 2021 Judgment and Peremptory Writ of Prohibition commanding SWRCB not to implement the Procedures via the Water Quality Control Plan for Inland Surface Waters and Enclosed Bays, as originally proposed by SWRCB.

As discussed in our previous article, the Sacramento County Superior Court recently prohibited SWRCB from implementing the Procedures via the Water Quality Control Plan for Inland Surface Waters and Enclosed Bays after concluding that SWRCB lacked the necessary authority under the Porter-Cologne Water Quality Act.

According to the Notice, “the Superior Court’s decision did not impair the Water Boards’ authority to regulate discharges of dredged or fill material to all waters of the state, including waters of the state that are not also waters of the United States, except to the extent that such regulation is via a water quality control plan.” Thus, according to the Notice, SWRCB remains free to implement the full scope of the Procedures as “state policy.”

It remains to be seen whether SWRCB’s intention to implement the Procedures as “state policy” rather than via a water quality control plan will be “confirmed” at the April 6, 2021 meeting. If you have any questions regarding the Notice or the applicability of the Procedures to your project, please contact JMBM’s Natural Resources and Mining Group.

Click here for a copy of SWRCB’s February 3, 2021 Notice.

Click here for a copy of the Court’s January 26, 2021 Judgement.

Click here for a copy of the Court’s January 26, 2021 Peremptory Writ of Prohibition.

Kerry Shapiro
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

Martin Stratte
Martin Stratte is a land use and environmental attorney at Jeffer Mangels Butler & Mitchell LLP. He assists with the entitlement of complex projects throughout California in accordance with CEQA, NEPA, and California’s greenhouse gas emission and climate change regulations. He also represents clients in related litigation. Contact Martin at MStratte@jmbm.com.

Daniel Quinley
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.