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January 13, 2021  |  Written by Brittany K. Johnson, Ellen M. Simmons

Sacramento Superior Court Rejects State Water Board’s Attempt to Apply Water Quality Control Plan to Waters Not Covered by the Clean Water Act

The Sacramento County Superior Court recently issued a final decision in San Joaquin Tributaries Authority v. California State Water Resources Control Board, finding that the State Water Resources Control Board (State Board) is not authorized to adopt a state-level water quality control plan for waters that are not classified as waters of the United States.  As a result, the State Board is prohibited from applying the Water Quality Control Plan for Inland Surface Waters and Enclosed Bays and Estuaries of California (Inland Surface Waters WQCP) to wetlands that do not meet the federal definition of waters of the United States.  At the same time, the court confirmed that authority for adopting and implementing water quality control plans for such waters resides with the Regional Water Quality Control Boards (Regional Board).  Thus, the extent to which this decision may impact a person discharging to such waters will depend on the Regional Board jurisdiction in which the discharger is located.

This case arose from the State Board’s attempt to use state regulations to counteract recent limitations on the federal definition of waters of the United States.  The federal Clean Water Act (CWA), which governs water quality on a national scale, is applicable only to navigable waters of the United States.  The United States Supreme Court has narrowed the definition of “waters of the United States” in its decisions issued the last two decades.  In response, the State Board began developing a policy to protect California’s non-navigable wetlands under the Porter-Cologne Water Quality Control Act, the state law that applies to discharges of waste.  These efforts culminated in April 2019 when the State Board adopted the State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State (Procedures).  The Procedures, in turn, amended the Water Quality Control Plan for Ocean Waters, known as the Ocean Plan, and the Inland Surface Waters WQCP.  Importantly, the Procedures provided an expanded statewide definition for “wetlands” that included all “waters of the state,” regardless of its status as a water of the United States.

Petitioner San Joaquin Tributaries Authority challenged the Procedures, asserting that the State Board does not have authority to apply the Procedures to waters other than waters of the United States as defined by the CWA.  In its ruling, the court agreed that Porter-Cologne vests primary authority for adopting water quality control plans in regional water quality control boards.  The State Board’s authority to adopt water quality control plans, as described by Water Code section 13170, is limited solely to waters of the United States.  Water quality control plans for state waters must be adopted by a regional water quality control board and then sent to the State Water Board for approval.

The State Board unsuccessfully argued that Water Code section 13140, which authorizes it to adopt state policy for water quality control, provides a basis to apply the Procedures to waters of the state which are not covered by the CWA.  The court rejected this rationale, finding that section 13140 does not contemplate State level water quality control plans.  As such, the State Board is prohibited from applying the Procedures through the Inland Surface Waters WQCP to waters that do not qualify as waters of the United States.

Conversely, the court upheld the State Board’s adoption of Procedures for the WQCP for Ocean Waters.  The Court found that, unlike wetlands, the State Board is authorized by Water Code section 13170.2 to adopt a water quality control plan for Ocean Waters.

For more information on this topic, please contact Ellen Simmons at esimmons@somachlaw.com or Brittany Johnson at bjohnson@somachlaw.com.

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