On August 4, 2023, Governor Newsom issued Executive Order N-10-23, the latest in a series of executive orders addressing the impacts of the series of atmospheric rivers that caused a State of Emergency in California in late 2022 and early 2023. Order N-10-23 suspends several statutes, regulations, and permitting criteria for certain activities to mitigate ongoing flood risk in several regions of the state.

Eligible projects must be completed by November 1, 2023.

Regulatory Suspensions

Order N-10-23 suspends four categories of laws and implementing regulations:

1. Lake and streambed alteration agreement requirements under Fish and Game Code Division 2, Chapter 6, and all implementing regulations;
2. Enrollment criteria limiting the State Water Resources Control Board’s (State Board) water quality certification permitting authority under U.S. Army Corps of Engineers emergency general permits;
3. For activities not covered by an emergency general permit, the requirement to file discharge reports with the appropriate Regional Water Quality Control Board (Regional Board) and waste discharge requirements; and
4. The California Environmental Quality Act.

Eligible Projects

Qualifying projects include:

• • Repair or replacement of existing levees, weirs, or other conveyance and flood-control infrastructure;
  • Debris removal;
  • Sediment removal; or
  • Vegetation management.

Projects must be located within the San Joaquin River, Tulare Lake Basin, Salinas River, or Pajaro River and their tributaries, or within other coastal streams between the Pajaro River to and including Ventura River.

Moreover, all projects must satisfy the following conditions:

• • Necessary to respond to 2022-23 storm events and to avoid damages from high streamflow events in the next rainy season;
  • Reestablishes a functional low flow channel or channel capacity, or would clear sediment and debris from a river channel near structures (e.g., bridges);
  • Levees are either set back from their previous location, expanding channel capacity, or are rebuilt as configured before storm events;
  • Does not dispose of or place flood-delivered sediments into waters of the state, or place sediments in locations where it may be washed into waters of the state;
  • Minimizes impacts to beneficial uses of water; and
  • Will be completed by November 1, 2023.

Projects involving sediment or vegetation removal must also meet the following criteria:

• • Does not include excavation establishing a new low flow channel that did not exist before the storm events;
  • Maintains natural stream contour;
  • Maintains downstream slope of stream flow line;
  • Does not impede fish passage or cause fish stranding;
  • Activities are limited to dry portions of the channel; and
  • Does not remove more than 30% of total native vegetation within the stream channel and bank from each river mile.

Finally, suspensions of discharge reporting and waste discharge requirements must satisfy additional conditions and perform the following notification procedures:

• • Notify jurisdictional Regional Board as soon as possible, but no later than 48 hours before initiating the project. The Order does not describe the appropriate mechanism or provide contact information for notification. Project proponents may notify the jurisdictional Regional Board’s Executive Officer or Assistant Executive Officer, as well as Regional Board waste discharge requirement permitting staff. The notification must include:
    • • The scope and location of the activity;
      • A description of relevant infrastructure, debris, sediment, and vegetation conditions;
      • Representative photographs; and
      • If applicable, a description of how the activity would establish a functional low flow channel or reestablish channel capacity;
  • If the project accidentally discharges a reportable quantity of a hazardous material, the proponent must follow certain notification and reporting procedures;
  • The project must be undertaken to avoid violating a water quality standard. If a water quality standard is violated, the proponent must eliminate the source of the discharge as soon as practicable;
  • The project cannot result in the degradation of beneficial uses or exceedance of water quality objectives;
  • Any temporary dams or other obstructions must be constructed from materials that will cause little to no siltation. Normal flows must be restored immediately upon completion of work at that location;
  • Submit a detailed written report notifying jurisdictional Regional Board of water quality standard violations within three working days of the violation;
  • Conduct continuous visual surface water monitoring to detect accidental discharges of construction-related pollutants;
  • Perform only the minimum necessary repairs and construction to alleviate emergency conditions;
  • Include only in-kind replacement or refurbishment of on-site features, with minor upgrading allowed if bioremediation or other environmentally sensitive solutions are used;
  • Employ effective best management practices to control erosion and runoff. The proponent must restore areas of temporary impacts and disturbances where a discharge to waters of the United States or waters of the state could result; and
  • Notify jurisdictional Regional Board within 30 days of completion.

For more information about Executive Order N-10-23 or questions regarding project applicability and procedures, please contact:

• Ellen M. Moskal, emoskal@somachlaw.com
• Kelley M. Taber, ktaber@somachlaw.com

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.