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April 7, 2021  |  Written by Brittany K. Johnson, Ellen M. Simmons, Roberta L. Larson

State Water Resources Control Board Adopts Resolution Approving State Wetland Definition and Dredge and Fill Procedures

On April 6, 2021, the State Water Resources Control Board (State Board) approved the application of the State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State (Procedures) as a water quality control policy, carefully avoiding the scope of a recent court order.  This resolution will allow the Board to directly apply the water Procedures to waters of the State as an exercise of its policy-making authority rather than the water quality control planning process.

San Joaquin Tributaries Authority v. State Water Resources Control Board (SJTA v. SWRCB)

In January 2021, the Sacramento County Superior Court issued a judgment and writ in SJTA v. SWRCB prohibiting the State Board from applying the Procedures via the Inland Surface Waters Water Quality Control Plan (Inland Surface Waters Plan).  In its decision, the court expressly stated that “…[Water Code] Section 13140 did not authorize the State Board to establish or amend any statewide [water quality control plan].  Accordingly, the only authority to amend the [water quality control plan] for Inland Surface Waters and Enclosed Bays and Estuaries of California was [Water Code] Section 13170.”  The court further concluded that Section 13170 did not authorize the State Board to adopt water quality control plans for state waters.  It reaffirmed that the Regional Water Quality Control Boards have sole authority to adopt water quality control plans for waters of the state.

Adoption of New Resolution by the State Board

The Board took the position that SJTA v. SWRCB only prohibited the Board from applying the Procedures through the Inland Surface Waters Plan.  Although the court concluded that Section 13140 was insufficient to authorize the Board to apply the Procedures to waters of the state through a water quality control plan, the State Board contends that the court did not rule on the issue of whether Section 13140 provided adequate authority to apply the Procedures as a matter of water quality control policy.  In response to the court’s opinion, the State Board adopted the resolution to apply the Procedures to waters of the state as a matter of state policy, via Water Code Section 13140, rather than through the Inland Surface Waters WQCP, via Water Code Section 13170.

Stakeholders accuse the State Board of attempting to rewrite history and provide an after-the-fact rationalization for an invalid action.

Controversy Regarding the Legality of the New Approach

The salient question, raised by numerous concerned stakeholders, was articulated by the State Board’s Vice Chair Dorene D’Adamo:  whether Section 13140 authorizes the Board to adopt regulations as a matter of policy, or whether the Board is exceeding its authority.

Stakeholders submitted comments questioning the Board’s interpretation of SJTA v. SWRCB.  Counsel for SJTA posited that the court did not address the issue of whether the Procedures may be applied as a water quality control policy for the sole reason that the Board had not, at any point in the proceedings, made the case that the Procedures could be validly applied in that context.  She characterized the resolution as an attempt to rewrite history and provide an after-the-fact rationalization for the Procedures.  Staff countered that the approach to wetlands began as proposed policy, the Board has a long history of adopting detailed policies, and that approval of the resolution would not be a significant expansion of State Board authority.

Implications of the Approval

As a result of the State Board’s adoption of the resolution, the Procedures will be applied to waters of the state in addition to waters of the United States.  As pointed out by commenters and the State Board, the result of the litigation will bear heavily on the Board’s approach to policy and regulation in the future.  The question of the State Board’s authority to adopt regulatory policies under Section 13140 is anticipated to be particularly relevant with regard to the adequacy of the highly controversial Toxicity Provisions adopted by the Board in December 2020.

For more information regarding SJTA v. SWRCB, please refer to the following article: https://somachlaw.com/policy-alert/sacramento-superior-court-rejects-state-water-boards-attempt-to-apply-water-quality-control-plan-to-waters-not-covered-by-the-clean-water-act/

The draft Resolution approving the Procedures may be found on the Board’s website here.

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

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