United States: State Water Board Announces Intent To Enforce 2019 Procedures For Discharges Of Dredged Or Fill Material As "State Policy"

On February 3, 2021, the State Water Resources Control Board ("SWRCB") issued a "Notice of Opportunity to Comment and Notice of Public Hearing and Consideration of Adoption" ("Notice") of a resolution "to confirm that the State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State (Procedures) are in effect as state policy for water quality control." The Notice states that SWRCB will consider the resolution at a public video/teleconference meeting on April 6, 2021.

The Notice was issued in response to a January 26, 2021 Judgment and Peremptory Writ of Prohibition commanding SWRCB not to implement the Procedures via the Water Quality Control Plan for Inland Surface Waters and Enclosed Bays, as originally proposed by SWRCB.

As discussed in our previous article, the Sacramento County Superior Court recently prohibited SWRCB from implementing the Procedures via the Water Quality Control Plan for Inland Surface Waters and Enclosed Bays after concluding that SWRCB lacked the necessary authority under the Porter-Cologne Water Quality Act.

According to the Notice, "the Superior Court's decision did not impair the Water Boards' authority to regulate discharges of dredged or fill material to all waters of the state, including waters of the state that are not also waters of the United States, except to the extent that such regulation is via a water quality control plan." Thus, according to the Notice, SWRCB remains free to implement the full scope of the Procedures as "state policy."

It remains to be seen whether SWRCB's intention to implement the Procedures as "state policy" rather than via a water quality control plan will be "confirmed" at the April 6, 2021 meeting. If you have any questions regarding the Notice or the applicability of the Procedures to your project, please contact JMBM's Natural Resources and Mining Group.

Click here for a copy of SWRCB's February 3, 2021 Notice.

Click here for a copy of the Court's January 26, 2021 Judgement.

Click here for a copy of the Court's January 26, 2021 Peremptory Writ of Prohibition.

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