State Wetland Definition and Procedures for Discharges of Dredge or Fill Material to Waters of the State Becomes Effective on May 28, 2020

September 10, 2019

On August 28, 2019, the California Office of Administrative Law (“OAL”) approved the State Wetland Definition and Procedures for Discharges of Dredged or Fill Materials to Waters of the State (“Procedures”). Consequently, the Procedures will become effective on May 28, 2020 — nine (9) months after OAL approval, based on the implementation date set forth in the Procedures.

The move by OAL comes despite allegations by the San Joaquin Tributaries Authority (“SJTA”) that the State Water Board exceeded its statutory authority and failed to comply with the California Water Code. The SJTA filed a petition for writ of mandate and complaint for mandatory relief challenging the Procedures in Sacramento Superior Court on May 1, 2019, and subsequently filed an amended petition for writ of mandate and complaint on May 20, 2019. According to the SJTA, the State Water Board’s adoption of the Procedures was unlawful, and must therefore be set aside for several reasons, which are fully described in our May 9, 2019 client alert on the litigation.

The Procedures subject nearly any discharge of dredge or fill to waters of the state — subject to limited exceptions — to burdensome and largely duplicative requirements, which will lengthen project construction timelines and result in additional project costs. For information regarding the Procedures’ contents and other anticipated implications, please see our April 4, 2019 client alert. Given the informational, cost, and timing realities associated with compliance with the Procedures, including the potential need for an alternatives assessment, the regulated community would be well served to submit any applications for water quality certification necessary for projects that have already undergone California Environmental Quality Act review prior to the May 28, 2020 effective date.

In drafting the Procedures, the State Water Board anticipated industry would attempt to submit projects in advance of the effective date, and warned that any application which Water Board staff finds to be “so obviously deficient that it is clear that it was submitted prematurely to avoid having to comply with the Procedures,” would be denied without prejudice, allowing for resubmission of the application in accordance with the Procedures. Any applicant submitting an application over the months leading up to the Procedures’ effective date would be well served to ensure completeness and sufficiency of its application. However, it is worth noting that although the Procedures will not officially be effective until May of 2020, we anticipate that Regional Board staff will be reviewing applications with the Procedures in mind. Consequently, counsel advising on the scope of jurisdictional waters at a site, alternatives analysis requirements, and mitigation measures should ensure they are familiar with the contents of the Procedures. Additional updates will be posted as the new program becomes effective and takes further shape.