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Clarification on California “Waters of the State” Regulations

On June 22, 2020, the Navigable Waters Protection Rule went into effect, finalizing a revised definition of “waters of the United States (U.S.)” under the Clean Water Act (CWA) and significantly decreasing the number of waters that fall under federal jurisdiction. In general, a water must now be perennial or intermittent and have a direct surface connection to a traditionally navigable water to be considered a water of the U.S. This excludes all ephemeral features that only flow as a direct result of precipitation.

In order to strengthen protection of and clarify jurisdiction for waters of the state that no longer fall under the purview of the CWA, the California State Water Resources Control Board (SWRCB) adopted the State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State (Procedures), which went into effect on May 28, 2020. With these Procedures, the SWRCB utilizes a broad definition of what is considered a “water of the state” in order to maintain consistency across regulatory changes at the federal level. All current and historic waters of the U.S., including those that fell under a previous regulatory definition of waters of the U.S., are considered waters of the state.

The Lahontan Regional Water Quality Control Board (RWQCB) confirmed to Insignia Environmental that the SWRCB and nine associated RWQCBs will continue to take jurisdiction up to the ordinary high water mark (OHWM) and rely on the delineation methods outlined in the U.S. Army Corps of Engineers Wetlands Delineation Manual (1987) and the 2008 and 2010 Regional Supplements. The only deviation is that according to the Procedures, a lack of vegetation does not preclude a water feature from meeting the definition of a wetland, whereas it does according to the 1987 Manual and 2008 and 2010 Regional Supplements.

An example of a historic water of the U.S. that no longer falls under federal jurisdiction but still falls under the jurisdiction of the SWRCB and RWQCBs are ephemeral features (like dry washes). Previously, discharge of dredge or fill material into an ephemeral feature would require a CWA Section 404 permit from the U.S. Army Corps of Engineers (USACE), as well as a CWA Section 401 Water Quality Certification (WQC) from the appropriate RWQCB (or from the SWRCB if more than one region is involved) to certify that the proposed activity would comply with state water quality standards. However, because ephemeral features are no longer considered jurisdictional under the CWA, obtaining RWQCB or SWRCB approval through a WQC is no longer an option. Instead, the new requirement is to obtain a Waste Discharge Requirement (WDR) pursuant to the Porter-Cologne Water Quality Control Act.

The Porter-Cologne Water Quality Control Act of 1967 (also known as the California Water Code) established a comprehensive program in California to protect water quality and the beneficial uses of water; this includes regulating waste discharges (e.g., discharges of dredged or fill material) that could affect the quality of waters of the state through the WDR program. There are two types of WDRs: individual WDRs, which are tailored to specific dischargers, and general WDRs, which are for a similar group of dischargers. The RWQCBs (for their respective regions) or the SWRCB (for statewide applicability) can adopt general WDRs for categories of discharges if they involve similar operations, types of waste, and monitoring. Examples of general WDRs that could be utilized for the construction of utility or infrastructure projects include:

  • Statewide General WDRs For Discharges To Land With A Low Threat To Water Quality (Water Quality Order No. 2003 –0003–DWQ), which cover
    • small/temporary dewatering projects (e.g., excavations during construction),
    • pipelines/tank hydrostatic testing discharge, and
    • boring waste discharge;
  • Statewide General Order For Discharges From Natural Gas Utility Construction, Operations And Maintenance Activities (Water Quality Order No. 2017-0029-DWQ), which covers
    • discharges due to dewatering and hydrostatic testing of new and/or existing natural gas facilities related to excavation, construction, testing, maintenance, operation and/or repair; and
  • Statewide General WDRs For Dredged Or Fill Discharges To Waters Deemed By The USACE To Be Outside Of Federal Jurisdiction (Water Quality Order No. 2004-0004-DWQ), which cover
    • dredged or fill discharges of not more than 0.2 acre and 400 linear feet for fill and excavation discharges, and of not more than 50 cubic yards for dredging discharges (e.g., projects that include detention basins, bank stabilization, revetment, and channelization).

Unfortunately, there is no regulatory requirement for WDRs to be issued within a certain time period after a complete permit application is received. Whereas under the 2020 CWA Section 401 Certification Rule, state agencies are required to act upon a request for a WQC within a reasonable period of time that is not to exceed 1 year after receipt of the request. Therefore, it is important to note that general WDRs tend to have less intensive submittal requirements than an individual WDR; for example, the general WDR for Discharges From Natural Gas Utility Construction, Operations And Maintenance Activities only requires a complete application package (i.e., a Notice of Intent) at least 30 days prior to commencing discharge activities.

When evaluating projects that may impact waters of the state, it is worth keeping in mind that the California Department of Fish and Wildlife (CDFW) will also likely have regulatory authority. The CDFW requires a Lake or Streambed Alteration Agreement for all activities that would alter the flow, bed, bank, or channel of a stream or lake. Because the CDFW evaluates impacts to the bank of a waterbody as well as the water itself, jurisdiction is taken to the “top of bank” (TOB), which is usually higher than the OHWM. Therefore, both the TOB and OHWM should be identified when evaluating water impacts for a project.

Considering the number of changes to both federal and state water regulations in recent years, there will almost certainly be more to come as litigation grows more complex and administrations are reorganized. Insignia Environmental will be monitoring and analyzing these changes and will provide additional updates as information becomes available.

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