By: Clark Morrison
Last month, the Sacramento Superior Court delivered a serious blow to California’s regulatory program for the protection of wetlands and other waters of the State.
The State’s wetland protection program (commonly known as the “Procedures”), which became effective in May, was intended to create a regulatory structure to fill the gap left by recent Trump administration regulations that dramatically narrowed Federal wetland protections. Ironically, the court’s order prohibits the State of California from applying the Procedures to any waters other than those already protected by Federal law, thus leaving in place the very regulatory gap that the Procedures were intended to fill.
Under California’s Porter-Cologne Water Quality Control Act, water policy for the State is established by the State Water Resources Control Board (the “State Water Board”). Policies established by the State Water Board are supposed to be implemented by the nine regional water quality control boards (the “Regional Boards”), each of which adopts and enforces a water quality control plan (or “WQCP”) for waters within its region.
When it adopted the Procedures, the State Water Board purported to amend certain WQCPs within the State. In its ruling, however, the Court held that WQCP’s (except in limited instances) may only be adopted or amended by the Regional Boards, and that the State Water Board therefore overstepped its bounds. The Court further reasoned that, because of the high level of detail found in the Procedures, they could not be justified as a mere act of “policy-making” by the State Water Board. Accordingly, the State has been enjoined from applying the Procedures to any waters other than those regulated by the Clean Water Act under the Trump administration’s narrow policies.
Importantly, the Court rejected the plaintiff’s claim that the discharge of dredged or fill material could not be regulated as “waste” under Porter-Cologne. The plaintiffs had asserted that dredged material and fill material are not always “waste” within the meaning of Porter-Cologne. Although the Court acknowledged that this may be true, it rejected the claim as not ripe, reasoning that the question should be worked out (or litigated) on a case by case basis.
The Court’s ruling does not mean that a water board permit is no longer needed for discharges to wetlands and other waters. A permit is still required for those activities. It’s just that the specific application, permitting and regulatory requirements and standards set forth in the Procedures may not be applied by the water boards in their permitting decisions. The Court is expected to issue an order in the near future that will articulate the precise scope of the injunction against application of the Procedures. This article was originally prepared by Clark Morrison (firstname.lastname@example.org) of Cox, Castle & Nicholson LLP, in San Francisco, CA, and is republished with permission.
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