Recent Court Cases Regarding State Water Board Procedures

The State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State (State Procedures) were adopted by the State Water Resources Control Board (State Water Board) on April 2, 2019, and became effective on May 28, 2020. The State Procedures were adopted as a response to changes in the Clean Water Act that resulted from recent U.S. Supreme Court decisions, the need to consistently define “wetlands” at the state level, and the need to prevent the loss and degradation of wetlands in California. The procedures consist of a revised definition of “wetlands” and descriptions of a process for determining whether a wetland is a water of the state, wetland delineation procedures, and new procedures for the permitting of dredge and fill activities. The procedures apply to all waters of the state as defined by Water Code Section 13050. Recent court decisions have influenced application of the State Procedures and have practical implications for environmental professionals working in California.

San Joaquin Tributaries Authority v.
California State Water Resources Control Board

In May 2019, the San Joaquin Tributaries Authority (SJTA) filed a petition to challenge the State Procedures on the grounds that the State Water Board exceeded its authority under Water Code Section 13170 by applying the revised procedures to nonfederal waters and on the grounds that the State Water Board also exceeded its authority under the Porter-Cologne Water Quality Control Act by regulating dredged and fill material that does not meet the definition of “waste” as defined by Water Code Section 13050.

The Court’s Decision. On January 26, 2021, the superior court issued a judgment and writ enjoining the State Water Board from applying the State Procedures through the Water Quality Control Plan for Inland Surface Waters and Enclosed Bays and Estuaries Water Quality Control Plan (ISWEBE Plan) to waters of the state that are not also waters of the United States. The court ruled, however, that the State Water Board did have the authority to adopt water quality control plans for ocean waters.

The court also ruled on the question of the State Water Board’s authority to regulate dredged and fill material as “waste” under the Porter-Cologne Water Quality Control Act. It ruled that because dredged and fill material associated with “human habitation” meets the definition of “waste” in the Porter-Cologne Water Quality Control Act, the State Water Board did not exceed its authority in regulating dredged and fill materials under the act (Granquist and Quinn 2021).

Sweeney et al. v. California Regional Water Quality
Control Board, San Francisco Bay Region et al.

On February 18 of this year, the First Appellate District Court reversed an earlier 2017 decision of the Solano County Superior Court in Sweeney et al. v. California Regional Water Quality Control Board. The appellate court disagreed with the trial court’s decision that “waste” under the Porter-Cologne Water Quality Control Act refers only to sewage or other useless discarded material, instead defining “waste” by the “harm it caused the environment” (Granquist et al. 2021).

State Water Resources Control Board Response

The State Water Board unanimously approved a resolution on April 6, 2021, to confirm that the April 2, 2019, adoption of the State Procedures relied in part on the board’s authority pursuant to Water Code Section 13140. Section 13140 allows the State Water Board to formulate and adopt water quality control policy. Application of Section 13140 is not restricted to waters that are under federal jurisdiction. Use of the authority under Section 13140 would confirm that the procedures apply to all waters of the state, as a matter of state policy. Therefore, the State Water Board will continue to apply the State Procedures to all waters of the state, not through application of the ISWEBE Plan, but rather through its authority under Water Code Section 13140. The adopted resolution further clarified that the State Procedures will be applied through the ISWEBE Plan only to waters of the United States.

Practice Implications for Environmental Review and Permitting

The court’s decision in SJTA v. California State Water Resources Control Board restricts the State Water Board’s authority to incorporate State Procedures into the ISWEBE Plan and other future water quality plans pursuant to Water Code Section 13170. However, the State Water Board resolution adopted on April 6, 2021, reaffirmed the authority of the board to apply the State Procedures to all waters, not just waters of the United States, as a matter of policy. Of course, this resolution may be further challenged in the courts; however, the adopted resolution requires future projects to use the State Procedures for wetland delineations and discharge to all waters of the state. The definition of “waste” that results from both the SJTA decision and the appellate court’s opinion in Sweeney et al. v. California Regional Water Quality Control Board is broad and includes most dredged and fill materials. With adoption of the resolution on April 6, 2021, and use of this definition of “waste,” the State Water Board will apply the State Procedures by policy to all waters of the state regardless of their status as waters of the United States.

The application of the State Procedures provides a consistent definition of waters of the state across all regional boards and a new application process that includes a pre-filling meeting with agency staff and an alternative analysis for many projects that do not meet the exemptions from these requirements (e.g., prior converted cropland, rice fields, some agricultural ditches and basins). Project applicants and environmental professionals should be aware of these requirements and plan permitting schedules accordingly.