The Sacramento County Superior Court recently invalidated state regulations that were designed to create new permitting requirements for dredge and fill activities in wetlands that lost federal protections under the Clean Water Act following United States Supreme Court decisions in the early-2000s and changes to federal regulations. The case is captioned San Joaquin Tributaries Authority v. California State Water Resources Control Board, Case No. 34-2019-80003133.
The wetlands regulations at issue were adopted by the State Water Resources Control Board (“SWRCB”) in April 2019 as an amendment the Water Quality Control Plan (“WQCP”) for Ocean Waters of California and the WQCP for Inland Surface Waters, Enclosed Bays, and Estuaries of California (collectively the “Amended WQCPs”). The Amended WQCPs extended protections to wetlands that are not subject to protection under the Clean Water Act (referred to as “waters of the state”), created procedures for identifying and delineating waters of the state, and established permitting requirements for those seeking to discharge dredged or fill material into waters of the state.
The Amended WQCPs are the culmination of an effort that began in 2008. An early version of the regulations, the Water Quality Policy for Wetland Area Protection and Dredge and Fill Permitting, was released in 2012 as a “state policy for water quality control” under the Porter-Cologne Water Quality Control Act (“Porter-Cologne”). In 2016, the SWRCB converted its state policy for water quality into the Amended WQCPs. Under Porter-Cologne, WQCPs are primarily the responsibility of California’s nine Regional Water Quality Control Boards (“Regional Boards”) but the SWRCB may adopt its own WQCPs under Water Code section 13170.
In May 2019, the San Joaquin Tributaries Authority (“SJTA”) filed a petition for writ of mandate and complaint for declaratory relief requesting that the Amended WQCPs be vacated. The Complaint included five separate causes of action. As discussed below, the Court’s decision partially granted STJA’s petition for writ of mandate on the first cause of action but denied relief to the second through fifth causes of action. The first cause of action alleged that the SWRCB exceeded its regulatory authority because Water Code section 13170 provides that the SWRCB may only adopt WQCPs in waters for which water quality standards are required by the federal Clean Water Act (i.e., “waters of the United States”). Given that the explicit purpose of the Amended WQCPs was to regulate wetlands that are no longer considered “waters of the United States,” the first cause of action sought a writ of mandate directing the SWRCB to set aside the Amended WQCPs.
In partially granting SJTA’s first cause of action, the Court’s opinion notes that the allegations in the petition accurately reflect the law: Water Code section 13170 does not authorize the SWRCB to apply the Amended WQCPs to waters other than “waters of the United States.” It follows that the SWRCB is enjoined from applying the WQCP for Inland Surface Waters, Enclosed Bays, and Estuaries to waters to do not qualify as “waters of the United States.” Notably, the Court’s ruling did not invalidate the WQCP for Ocean Waters because it is governed by a different statute, Water Code section 13170.2, that specifically authorizes the SWCRB to adopt a WQCP for “ocean waters.” To the extent that the WQCP for Ocean Waters of California applies to waters that are not “water of the United States” it is still valid. As a result, the Court found that the amended WQCP for Inland Surface Waters, Enclosed Bays, and Estuaries exceeds the SWRCB’s jurisdiction under Water Code section 13170, but that the amended WQCP for Ocean Water is within the SWRCB’s jurisdiction pursuant to Water Code section 13170.2.
The Court’s decision imposes significant limits on the SWRCB’s regulatory program. The Staff Report for the Amended WQCPs notes that the primary target of the SWRCB’s regulatory effort were wetlands that are not “relatively permanent” and do not have a “significant nexus to traditional navigable waters,” such as ephemeral streams, vernal pools, and alpine wet meadows. (SWRCB Staff Report (May 14, 2019) pg. 49.) These wetlands features are often outside of federal jurisdiction and are not “ocean waters” subject to regulation under the WQCP for Ocean Waters. Because the SWRCB cannot apply the WQCP for Inland Surface Waters, Enclosed Bays, and Estuaries to wetlands that are not subject to the Clean Water Act, the portions of the Amended WQCPs that remain valid will not achieve the primary objective stated above. By verifying that authority to adopt WQCPs properly rests with the Regional Boards, the ruling leaves open the possibility that the individual Regional Boards could adopt standards identical to the Amended WQCPs. As a result, if the Court’s decision becomes final, then the SWRCB will need to either fundamentally reevaluate their legal approach for enacting a statewide wetlands regulatory program or collaborate directly with the individual Regional Boards to develop new WQCPs.
Russell Frink is an Associate at Harrison, Temblador, Hungerford & Guernsey LLP in Sacramento, California.
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