West Coast
via California State Water Resources Control Board

CA - Regulatory Changes On the Horizon for California State Water Resources Control Board

On December 17, 2020, the Sacramento County Superior Court issued a ruling limiting the ability of the California State Water Resources Control Board (“State Board”) to implement its adopted statewide wetlands and Waters of the State (“WOTS”) regulations.

The State Board enacted the WOTS regulations on a statewide basis as amendments to the State Board’s statewide water quality control plan. The court ruled that the State Board could not implement statewide regulations through a statewide water quality control plan for non-federal waters because the Porter Cologne Water Quality Act does not authorize the State Board to do so. This aspect of the decision potentially has broader implications for other regulations that the State Board has adopted as amendments to the statewide water quality control plan. Those broader implications are important to consider now because the State Board issued a Notice on February 3, 2021 stating that it will reconsider the WOTS regulations in response to the court’s ruling in a hearing scheduled for April 6, 2021.

The Notice also states that the State Board will confirm in the hearing that the State Board may apply the WOTS regulations to federal and non-federal waters as a water quality policy without violating the court’s ruling. The Notice further states that the State Board will consider whether the State Board may implement the WOTS regulations with respect to federal and non-federal waters as water quality control requirements without violating the court’s ruling. While the Notice does not state how the State Board might be able to implement the WOTS regulations as water quality control requirements, members of the homebuilding industry should be aware that the noticed action provides an opportunity to request State Board consideration of the increased costs for housing development resulting from implementation of the WOTS regulations. The Notice indicates the State Board is accepting written comments on its proposed action through noon on March 8, 2021.

Background

The State Board’s WOTS regulations require that anyone proposing to discharge dredge or fill material to WOTS (which encompass Waters of the United States (“WOTUS”), as well as a variety of other aquatic features) must obtain a state water quality certification and/or a state discharge permit in accordance with the new, quite stringent regulations.

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