May 9, 2019
On May 1, 2019, a group of California agencies and municipalities filed a petition for writ of mandate and complaint for mandatory relief challenging the State Wetlands Definition and Procedures for Discharges of Dredge and Fill Material to Waters of the State ("Procedures") in Sacramento County Superior Court. The entity bringing the challenge is the San Joaquin Tributaries Authority, a Joint Powers Authority ("JPA") comprised of several member agencies, including the Modesto Irrigation District, Oakdale Irrigation District, and the South San Joaquin Irrigation District. The City and County of San Francisco is also a member. The Procedures were adopted by the State Water Quality Control Board ("Water Board") on April 2, 2019; however, the Water Board has still not made a copy of the adoption resolution publicly available.
According to the JPA, the Water Board’s adoption of the Procedures was unlawful, and must therefore be set aside for several reasons including:
The Water Board exceeded its authority under Water Code section 13170 in adopting the Procedures. According to the petition, Water Code section 13170 limits the Water Board’s authority to development of water quality control plans and water quality standards applicable to waters regulated under the Clean Water Act ("CWA"). Because the CWA’s jurisdictional reach extends only to Waters of the United States, section 13170 limits the Water Board’s authority to amend water quality control plans to those waters which qualify as Waters of the United States.
The Water Board is exceeding its authority under the Porter-Cologne Act by seeking to regulate discharges of dredge and fill material. Under the Porter-Cologne Act, the State Water Board may regulate discharges of "waste" that may affect the quality of waters of the state. The Porter-Cologne Act states provides that waste "includes sewage and any and all other waste substances, liquid, solid, gaseous, or radioactive, associated with human habitation, or of human or animal origin, or from any producing, manufacturing, or processing operation, including waste placed within containers of whatever nature prior to, and for purposes of, disposal." According to the JPA members, the Water Board exceeding its authority to the extent that it implements the Procedures under its waste discharge requirement authority.
The Water Board violated the California Administrative Procedures Act ("APA"). The California APA requires that the Water Board comply with applicable public participation requirements set forth in the CWA. The CWA requires that any proposed regulations be made publicly available for at least 30 days prior to adoption. However, according to the JPA’s petition, the Water Board provided just 4 days of public review due to the issuance of a change sheet on March 29, 2019.
The Procedures constitute unlawful water quality control plan amendments. The Water Board adopted the Procedures as amendments to state-wide water quality control plans to ensure that the Procedures applied to all waters of the state. According to the JPA, the Water Board failed to include several mandatory water quality control plan elements including: (1) identification of beneficial uses protected by the plan; (2) establishment of objectives which provide protection for those beneficial uses; and (3) creation of a program of implementation. The JPA alleges that in the absence of these mandatory components the Procedures are an unlawful action.
The JPA is bringing this challenge to protect members' citizens from economic harm and the uncertainty which the Procedures will undoubtedly cause. In the petition, the JPA members echo concerns expressed by the regulated community at Water Board workshops and hearings leading up the adoption of the Procedures. The petition notes that the “regulatory requirements will harm farmers’ and ranchers’ agricultural activities by mandating compliance with new and costly water quality regulations,” and points out that the discretionary nature of the Procedures’ exclusions will lead to “inconsistent application and uncertainty within the regulated community over whether an exclusion will apply.” Water Board staff has authority to evaluate applications submitted under the Procedures and determine whether any exclusions apply. Many in the regulated community are concerned about the degree of discretion the Procedures afford Water Board staff not only in determining the extent to which the Procedures apply generally, but also in determining whether an alternatives analysis, which can cost hundreds of thousands of dollars, will need to accompany an application.
Though the outcome of several of the included causes of action remains to be seen, the challenge to the Water Board's regulation of “waste” under Porter-Cologne is noteworthy, as it is an issue upon which a plaintiff recently prevailed in litigation against the Water Board in Solano County Superior Court earlier this year. (Sweeney & Point Buckler Club, LLC v. San Francisco Bay Conservation and Development Commission, et al., Solano County Superior Court, Case No. FCS048861, decided December 26, 2017). That case is currently being appealed. However, if the Sacramento County Superior Court finds its sister court's determination persuasive this challenge could in fact prevent official adoption and implementation of the controversial Procedures. We will post updates as additional information regarding the petition becomes available.