A 17 December 2020 trial court order largely prohibits the California Water Resource Control Board (State Board) from applying new rules that greatly expand California’s regulatory control over wetlands and dredge and fill activities throughout the state. The effect of the ruling may be temporary, however.
The rules, which took effect on 28 May 2020, were in large part an attempt to regulate waters not covered by the narrowed scope of the federal Clean Water Act under the Trump administration. The rules were overturned almost seven months later when the court in San Joaquin Tributaries Authority v. California State Water Resources Control Board (County of Sacramento Superior Court, Case No. 34-2019-80003133) issued an order prohibiting the State Board from applying the new rules to inland (i.e., non-ocean) state waters that are not subject to the federal Clean Water Act.
The trial court ultimately faulted the State Board for issuing the rules not as a policy for regional boards to apply when adopting or revising regional water quality control plans (WQCPs), but instead as amendments to statewide WQCPs that would immediately trump inconsistent regional plans. The court emphasized that while state law gives the State Board broad authority to issue policy, it allows the State Board to issue statewide WQCPs only for (a) ocean waters and (b) waters subject to the federal Clean Water Act, not for virtually all wetlands and surface waters of the State.
The bottom line is that, at least for now, the new rules no longer apply to inland projects that are outside the jurisdiction of the federal Clean Water Act. Absent a successful appeal, we expect the State Board will move quickly to re-issue the rules as policy, which requires a public hearing with at least 60 days’ notice. And even if the Board does re-issue the rules as policy, they likely will lack practical effect for developers until they are incorporated into regional WQCPs.
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