Proposed Regulatory Changes Would Impact Clean Water Act 401 Applicants in California
By Procopio Partner and Energy and Environmental Law practice leader John J. Lormon and Legal Assistant Miranda C. Barfield
A wide array of projects in California fall under the jurisdiction of the federal Clean Water Act (CWA), so it’s worth noting that changes are now being proposed to the jurisdictional reach of the CWA. In this first article of a two-part analysis, we examine the current California permitting process for projects subject to CWA dredge and fill jurisdiction, as well as proposed regulatory changes to this process pending approval in April 2019 by the California State Water Resources Control Board (State Board).
In December 2018, the Trump administration proposed rollbacks to federal CWA jurisdiction that could reduce regulated waters in southern California by up to 60-80%. These proposed changes would apply to any dredge or fill activity (e.g. grading) that could impact ephemeral or intermittent streams, or waters that are adjacent or connected to navigable waters. These modifications would arguably result in relaxed federal regulatory oversight for private and government development projects.
However, California regulators are stepping in to fill any void or loss of federal jurisdiction. The proposed changes, including the State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State, would, in some cases, produce even more stringent and time-consuming requirements than are currently in place under the CWA.
When an application is filed for a permit with the U.S. Army Corps of Engineers (Corps) to fill waters of the U.S. under Section 404 of the CWA, it cannot become effective until the state issues a water quality certification (known as a Section 401 Certification). The purpose of the 401 Certification is to assure compliance with state water quality standards to protect designated beneficial uses.
In California, 401 Certifications are issued by one of the state's nine Regional Water Quality Control Boards (Regional Boards). Generally, the 401 Certification is the most time-consuming authorization to obtain. The statutory timeline for processing a 401 Certification is described as follows:
- Once an application is filed, Regional Board staff has 30 days to deem the application complete or incomplete;
- Once the application is complete, the Regional Board has 60 days to take action on the application;
- Concurrently, the Regional Board publishes public notice of the complete application for a minimum of 21 days; and
- Failure to act within 60 days results in a waiver (an approval by operation of law) of the CWA water quality certification.
To avoid a waiver, the Regional Boards can issue the certification, deny the certification, or deny the certification without prejudice (DWOP). If the Regional Board needs more time before they can act, the Corps has the option to grant a time extension of up to one year. Without an extension, staff will commonly issue a DWOP to comply with their statutory time limit, as the DWOP status means the Regional Board has already acted. However, once a project is classified as a DWOP project, it is generally pushed to the back of the line for review behind the flood of incoming new applications, or emergency projects that require statutory-driven attention.
In a December 2018 report from the San Diego Regional Board (Region 9), staff noted that the program budget is too strained to adequately staff a program that can handle the incoming workload or resolve the existing backlog of applications. As a result, if a project receives a DWOP, it can take years from the date an application is filed to receive regulatory sign-off on design and mitigation, effectively leaving applicants in limbo as they wait for their certification to be drafted and issued. Additionally, Region 9 is considering moving away from a collaborative review process with applicants in order to reduce the amount of time staff spend helping applicants achieve compliance.
When presented with program performance data at the December 2018 Board meeting, one Board member suggested that increasing the project denial rate may be the best way to incentivize applicants to present better options. However, two other Board member suggested that the Regional Board should make it easier for applicants to understand staff's expectations upfront, with the mutual goal of preventing months and sometimes years of back and forth that both sides wish to avoid.
The regulated community should take note of possible changes to the 401 Certification program, propose practical improvements, and push back against changes that make the process more burdensome. The next article will review the most critical components of the new procedures currently under consideration by the State Board, including an analysis of federal requirements (e.g. alternatives analysis) that may be imposed on California projects where they have not been applied in the past. These procedures are intended to be incorporated in the forthcoming Water Quality Control Plan for Inland Surface Waters and Enclosed Bays and Estuaries and Ocean Waters of California.
John J. Lormon is a Partner with Procopio and leads its Energy and Environmental Law practice groups. His practice focuses on environmental and energy matters. John provides counsel for projects requiring environmental permits to meet the Clean Water Act, California Water Code, endangered species, climate, and CEQA/NEPA obligations. He has been lead counsel for large-scale biofuels, food product and food processing facilities, desalination plants, waste water treatment plants, hotels, and a variety of other industrial, commercial, and residential developments. He also provides compliance counseling on hazardous and universal waste, Prop 65, asbestos abatement, and stormwater. In addition, John represents clients in defending against agency, citizen, local, state, and federal environmental enforcement claims. John has provided permitting, power purchase agreements, analysis and written submittals related to CPUC integrated resource and long term procurement plan proceedings; provided advice related to decarbonization of projects, as well as counsel to energy project entity formation and financing.
Miranda C. Barfield is a legal assistant at Procopio to the Chair of the Energy and Environmental Law practice groups.