PUBLIC HEARING/OPPORTUNITY TO COMMENT: State Wetland Definition and Procedures

From the State Water Resources Control Board:

The State Water Resources Control Board (or State Water Board) will receive public comments regarding a proposed resolution to confirm that the State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State are in effect as state policy for water quality control.  A public hearing and consideration of adoption will be held on Tuesday, April 6, at 9am.

On April 2, 2019, the State Water Board adopted the “State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State” (Procedures).

On January 26, 2021, the Superior Court in San Joaquin Tributaries Authority v. California State Water Resources Control Board issued a judgment and writ “enjoining the State Water Board from applying, via the Water Quality Control Plan for Inland Surface Waters and Enclosed Bays [and Estuaries], the ‘State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State’ adopted by the State Water Board on April 2, 2019, to waters other than those for which water quality standards are required by the Federal Clean Water Act (33 U.S.C. Section 1251 et seq.).” The Superior Court’s decision upheld the adoption of the Procedures as part of the (1) California Ocean Plan and (2) Inland Surface Waters and Enclosed Bays and Estuaries Water Quality Control Plan (ISWEBE Plan) for “waters of the United States” as defined by the Clean Water Act.

The Superior Court decision addresses only the scope of the State Water Board’s authority to adopt water quality control plans under Water Code section 13170. It does not restrict the State Water Board’s authority to regulate the discharge of dredged or fill material to all waters of the state pursuant to the Board’s other regulatory tools, including its authority to adopt state policy for water quality control under Water Code section 13140. Accordingly, 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.

In Resolution No. 2019-0015, which adopted the Procedures, the State Water Board referred to its authority to adopt state policies for water quality control pursuant to Water Code section 13140, in addition to its authority to adopt water quality control plans pursuant to Water Code section 13170. Therefore, State Water Board staff is preparing an item for public notice and comment for Board consideration at the April 6, 2021 meeting to confirm that its April 2, 2019 action relied, in part, on Water Code section 13140 and that the Procedures are therefore effective for all waters of the state as a state policy for water quality control. The State Water Board will also consider giving direction to staff as to how to appropriately incorporate the Procedures into the ISWEBE Plan to regulate waters of the United States.

Because the substantive provisions of the Procedures were subject to two written comment periods and numerous opportunities for public participation, the State Water Board will not be reconsidering the substantive provisions of the Procedures. The State Water Board’s action will confirm whether the Procedures should continue to be applied to non-federal waters as a state policy for water quality control.

Because the State Water Board referred to Water Code section 13140 when it adopted the Procedures, staff will continue to apply the Procedures as a state policy applicable to all waters of the state, but not via the ISWEBE Plan, pending State Water Board direction on April 6, 2021.

The proposed resolution under consideration and related documents are available on the State Water Board’s Dredge or Fill Procedures Program page.

View/download full notice below:

notice_dredgefill_020321
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