On May 1, 2019, Petitioner San Joaquin Tributaries Authority, a Joint Powers Authority (Petitioner/Authority) filed a petition for writ of mandate in Sacramento County Superior Court against the State Water Resources Control Board (SWRCB). The Authority includes the City and County of San Francisco as petitioners. The petition challenges SWRCB’s approval of the “State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State” (Procedures) on April 2, 2019.
SWRCB released the Procedures in January 2019, shortly after President Trump announced his plan to rescind and replace the Obama Administration’s 2015 definition of “Waters of the U.S.” President Trump’s proposed definition of Waters of the U.S. is more narrow, and would reduce the scope of waters subject to federal regulation under the Clean Water Act, including activities within those waters, such as the discharge of dredge and fill material.
The SWRCB’s Procedures are intended to, among other things, codify California’s regulatory authority over the discharge of dredge and fill material into waters being proposed for exclusion from federal regulation through Trump’s proposed definition. The Procedures also seek to regulate dredge and fill activities within all “Waters of the State”, which is broadly defined to include “any surface water or groundwater, including saline waters, within the boundaries of the state.” This broad definition includes all natural wetlands, modified wetlands, and even some artificial wetlands.
The petition challenges SWRCB’s proposed regulation of the dredge and fill activities within the broadly-defined Waters of the State, and alleges that SWRCB’s authority to regulate such activities is limited to only Waters of the U.S. The petition also challenges SWRCB’s proposed regulation of dredge and fill material as “waste” under the Porter-Cologne Act, and alleges that the definition of waste in the Porter-Cologne Act does not include dredge and fill material. Plaintiff John Sweeney raised a similar challenge in his recent, unrelated litigation against SWRCB, which is presently pending on appeal.