Are “Wetlands” Really “Waters of the State”?
California regulates “discharges of waste” into “waters of the state” under the Porter-Cologne Act. Contrary to popular supposition, “waters of the state” properly do not include “wetlands.” The California Legislature had no intention of reaching wetlands when it enacted the statute in 1969. What!? But the State Water Resources Control Board and the Regional Water Quality Control Boards have long treated “wetlands” as “waters of the state” and asserted they have jurisdiction to regulate discharges of waste into them. Indeed, after a decade or so of consideration, the State Board recently adopted an extensive regulation prescribing detailed procedures by which it intends to do exactly that. That the State and Regional Boards have claimed this authority and have so far gotten away with it though does not establish the validity of their claim nor shield it from challenge.
Porter-Cologne Act
Whether “wetlands” are “waters of the state” regulated under the California Porter-Cologne Act is a question of how to read and understand the statute, and that calls for recognizing and following well established, fundamental principles of statutory interpretation. Even though the State and Regional Boards have long been in the habit of treating wetlands as waters of the state, their claim has never been examined or sanctioned by any court. It remains, in that sense, an open legal question.
The Porter-Cologne Act provides that anyone discharging or proposing to discharge “waste” within any region in the state that could affect the quality of “waters of the state” must first file a report of waste discharge with the pertinent Regional Board and then comply with the conditions of any “waste discharge requirements” (i.e., a permit by another name) issued by the Board. (Water Code §§ 13260, 13264.) (Whether discharging “waste” extends beyond discarding or disposing of “sewage and any and all other waste substances,” as “waste” is defined in the Act, to also encompass placing and using materials such as sand, gravel, soil, concrete, and lumber for some intended, useful purpose, e.g., building houses and roads, repairing levees, or contouring agricultural fields, is a different question for another day.)
When enacting the Porter-Cologne Act in 1969, the Legislature defined “waters of the state” to mean “any surface water or groundwater, including saline waters, within the boundaries of the state.” (Water Code § 13050(e).)
The touchstone of understanding a statute is legislative intent, and in construing a statute, the “fundamental task is to ascertain the Legislature’s intent so as to effectuate the purpose of the statute.” (Smith v. Superior Court (2006) 39 Cal.4th 77, 83.) Toward this end, “we begin with the language of the statute, giving the words their usual and ordinary meaning.” (Id.)
In 1969, the Legislature undoubtedly understood “surface water” in keeping with its ordinary meaning and then existing law to refer not just to any H2O on the ground surface, but rather to an actual body of water, either flowing or still, that “encompasses both natural lakes, rivers and creeks and other bodies of water, as well as artificially created bodies such as reservoirs, canals, and dams.” (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 301-302.) “But by surface waters are not meant any waters which may be on or moving across the surface of the land without being collected into a natural watercourse.” (Horton v. Goodenough (1920) 184 Cal. 451, 453.) Integral to identifying a surface waterbody and delineating its extent is ascertaining and recognizing its boundary, the ordinary high water mark at common law, which distinguishes the surface waterbody from surrounding land. In Churchill Co. v. Kingsbury (1918) 178 Cal. 554, for instance, the California Supreme Court considered whether certain lands “were swamp and overflowed lands, passing to the state by grant from the United States, or were lands lying under the waters of a navigable lake, belonging to the state by virtue of her sovereignty.” (Id. at 557). Noting that a survey had been made of the ordinary high water mark of the lake, the Court affirmed that “[t]he lake consists of the body of water contained within the banks as they exist at the stage of ordinary high water.” (Id. at 559.) It distinguished that from other “land [that] was not a part of the bed of the lake, but was marsh or swamp land adjoining the border of the lake.” (Id.)
“Wetlands” is a word not yet appearing in any California court decision by the time the Porter-Cologne Act was enacted. The term has come into currency more recently to generally refer to areas that do not contain enough water often enough or long enough to develop an ordinary high water mark identifying them as waterbodies and delimiting their boundaries, but instead experience inundation or saturation by water often enough and long enough (perhaps as little as a couple weeks per year) to develop soil characteristics typical of anaerobic conditions and support a prevalence of vegetation typically adapted for saturated soil conditions.
Not only did the Legislature define “waters of the state” to mean “surface waters” as commonly understood, it also said nothing in the Porter-Cologne Act or its legislative history to suggest it intended these terms to include “wetlands” (or swamps, marshes, bogs, or the like). When passing the Act, the Legislature said nothing of “wetlands” in its definition of “waters of the state.” Indeed, the Legislature never mentioned wetlands anywhere in the Porter-Cologne Act. Nor did it refer to wetlands anywhere in the legislative history of the Porter-Cologne Act. If the Legislature had intended to depart from the common understanding of surface waters and start treating wetlands as waters of the state, one would reasonably expect the Legislature to have left at least some hint of that innovation in the Act and its legislative history. It did nothing of the sort. The Legislature’s omission of any reference to wetlands is compelling; it plainly did not have wetlands in mind when it enacted the statute and defined the “waters of the state” regulated under the Act.
That rightly marks the end of the inquiry. “Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.” (Burden v. Snowden (1992) 2 Cal.4th 556, 562.) The Legislature’s intent is manifest. “Waters of the state” as defined by the Legislature in the Porter-Cologne Act do not include wetlands.
State Board Claims Over Wetlands
The State and Regional Boards nonetheless have long claimed authority to regulate wetlands as “waters of the state.” On April 2, 2019, the State Board formalized its regulatory practices in this regard by adopting a state wetland definition and procedures for discharges of dredged or fill material to waters of the state. (State Water Resources Control Board, Res. No. 2019-0015; 23 Cal. Code Reg. § 3013.) In doing so, it asserted that wetlands of various types are “waters of the state.” (State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State, p. 2 (Apr. 2, 2019) (Procedures); Staff Report, pp. 3-4 (Apr. 2, 2019).)
This claim does not withstand scrutiny. Disregarding the first principle of statutory interpretation, the State Board failed even to attempt the fundamental task necessary to understanding the Porter-Cologne Act, i.e., read it with the aim of ascertaining the Legislature’s intent. In the Procedures and accompanying materials, the State Board spoke much about why it regarded including wetlands within its regulatory purview to be a good idea, but said almost nothing about what the Legislature intended. The Act’s meaning though is not a question of policy for the Board to decide as if writing on a clean slate, but rather a question of statutory interpretation. The Board’s responsibility is to faithfully ascertain and implement the Legislature’s intent, and not to arrogate to itself the supposed authority to decide what it thinks should be the scope of its own regulatory jurisdiction.
As explained above, both the text and legislative history of the Porter-Cologne Act reveal no intent of the Legislature to treat wetlands as “waters of the state.” The State Board has not offered any sound reason to imagine otherwise. It said nothing of the omission of any reference to “wetlands” in the statute and its legislative history. It said nothing of the ordinary meaning and common law understanding of “surface waters.” The most the Board offered was its own characterization that the Act defines waters of the state “broadly” to include “any surface water or groundwater, including saline waters, within the boundaries of the state.” (Procedures, p. 2; Staff Report, p. 57.) Simply labeling the Act’s definition as “broad,” though, is no evidence whatsoever of the Legislature’s intent. Even less does such a facile assertion explain or justify supposing the Legislature intended to include wetlands within “waters of the state.”
Seemingly dropping all pretense of seeking the Legislature’s intent, the State Board instead offered a novel theory for injecting “wetlands” into “waters of the state.” It observed that Congress enacted the federal Clean Water Act to regulate discharges of dredged or fill material into “waters of the United States.” Since the Clean Water Act is subject to constitutional limitations, e.g., the limited reach of the federal commerce power, inapplicable to the Porter-Cologne Act predicated on the state’s general police powers, the State Board observed that “waters of the state” thus could extend beyond “waters of the United States” that Congress might regulate under the commerce power. (Staff Report, pp. 16-17.) On that premise, the State Board asserted without further explanation that “‘[w]aters of the state’ includes all ‘waters of the U.S.’” (Procedures, p. 2; Staff Report, p. 57.) Extending its assertion even further, the State Board reasoned that since the term “waters of the United States” has been defined by the U.S. Army Corps of Engineers and Environmental Protection Agency in their regulations to include “wetlands,” “waters of the state” necessarily includes wetlands as well. (Staff Report, pp. 13-21, 55.)
This makes no sense. It is but wordplay, toying with an impossibility and a non sequitur—and failing to offer any real basis for the Board’s claim over wetlands. First, the impossibility: When the Legislature enacted the Porter-Cologne Act in 1969, it could not have intended “waters of the state” to include “waters of the United States” because the latter term had not yet been invented. Congress did not coin it until three years later when passing the Clean Water Act in 1972. Similarly, the Legislature could not have had in mind then nonexistent Corps and EPA wetland regulations when it defined “waters of the state” in the Porter-Cologne Act. The State Board cannot subsequently infuse “waters of the state” with meaning the Legislature could not possibly have intended when it defined the term. (See Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1388-1389; 78 Ops.Cal.Atty.Gen. 137, 140 (1995), observing that a California statute “could not possibly have been intended or designed to conform with the federal counterpart” enacted years later.)
The State Board nonetheless tried bootstrapping its claim, saying that its own regulation adopted in 2000 stating that, for certain limited purposes, “[a]ll waters of the United States are also ‘waters of the state’” (23 Code Cal. Reg. § 3831(w)) “reflects an intention by the Water Boards to include a broad interpretation of waters of the United States into the definition of waters of the state.” (Staff Report, p. 57.) The State Board’s regulation, though, equates waters of the state with waters of the United States only for purposes of “certifications” provided by the Boards pursuant to certain federal laws, such as section 401 of the Clean Water Act, and not for any other purposes. (23 Code Cal. Reg. § 3831.) If anything, the regulation’s limitation to circumstances governed by federal law in order merely to track federal law in such circumstances suggests, contrary to the State Board’s supposition, in other contexts all waters of the United States are not necessarily waters of the state. More to the point, though, the State Board presumes to predicate its regulatory definition on its intention to offer a broad interpretation of the statutory term “waters of the state.” While courts accord some deference to agency interpretations of statutes they administer, it remains the Legislature’s intention, not the State Board’s, that establishes the meaning of a statute. (E.g., California Drive-In Restaurant Ass’n v. Clark (1943) 22 Cal.2d 287, 294.) An agency cannot simply will a statute to mean what it wishes. Indeed, to the extent the State Board strayed beyond the Legislature’s intention, its regulation is invalid. (E.g., Pacific Legal Foundation v. Unemployment Ins. Appeals Bd. (1981) 29 Cal.3d 101, 111.)
Second, the non sequitur: In defining “waters of the state,” the Legislature of course was not bound by constitutional limitations on Congress in defining “waters of the United States,” and that may explain how “waters of the state” could extend to surface waters beyond the reach of the federal commerce power. How that observation might have any bearing though on the State Board’s further assertion that “waters of the state” must also be read to encompass features other than the “surface waters” specified by the Legislature, the State Board does not explain. It simply does not follow that because the Legislature had the power to regulate surface waters beyond Congress’s reach, it necessarily intended to regulate features other than surface waters, such as wetlands—and, moreover, did so without saying so.
Conclusion
The Porter-Cologne Act and its legislative history demonstrate the lack of any intent by the Legislature to treat “wetlands” as “waters of the state.” In nonetheless claiming authority to regulate “wetlands,” the State Board shrugs off the Legislature’s intent and instead resorts to alternative theories serving only to reveal the absence of any sound basis for its claim. “Waters of the state” within the meaning of the Porter-Cologne Act properly do not extend beyond “surface waters” to encompass “wetlands” elsewhere on the landscape.
That said, as a matter of practicality, there is little reason to expect major changes in the scope of wetland regulation in California any time soon. The vast majority of wetlands are regulated under the federal Clean Water Act by the Corps and EPA—and by the State and Regional Boards exercising their authority under section 401 of that federal Act to “certify” whether federal permits to fill such wetlands comply with pertinent federal and state requirements. That regulatory program will continue unaffected by whether the Boards regard wetlands to be “waters of the state” under state law. Moreover, wetlands outside federal jurisdiction commonly are regulated in some manner under local ordinances or other state or regional programs; those regulatory programs will continue as well.
The State Board’s newly adopted wetland regulatory Procedures may well remain in place too. Having accustomed itself for many years to enjoy regulatory jurisdiction under the Porter-Cologne Act at least coextensive with that exercised by the Corps and EPA under the Clean Water Act and having worked for a decade to develop the Procedures to extend and refine its regulatory program, the Board appears sufficiently invested in the effort to not readily relinquish it. Indeed, in January 2021, a superior court ruled that in adopting the Procedures as part of a water quality control plan and applying them to waters of the state beyond those subject to federal jurisdiction, the State Board exceeded its authority under the Porter-Cologne Act. The Board has responded by announcing it plans to adopt a resolution enabling it to continue implementing the Procedures, though as a “policy” rather than as a water quality control plan.
Few landowners have much incentive to further challenge the State Board’s tenacity. Owners of wetlands regulated under the federal or some other program would generally gain little or no regulatory relief by removal of the Board’s largely duplicative regulation of wetlands under the Porter-Cologne Act. Whatever projects or activities they undertake affecting those wetlands would remain subject to regulation under those other programs even if the State Board rescinded or a court set aside the Procedures. Landowners with wetlands outside the jurisdiction of the federal agencies, who thus might gain some regulatory relief by removal of the State and Regional Boards’ regulatory program, typically tend to prefer trying to reach acceptable resolutions of their land use issues through permitting rather than litigation. Generally, only those with their backs against the wall, such as those facing enforcement actions and penalties or onerous permit requirements, prohibitively expensive avoidance and mitigation measures, and the like, may feel sufficiently motivated to contest the legality of the Boards’ claim that they can regulate “wetlands” as “waters of the state.” In the meantime, the Boards’ house of cards otherwise likely will remain undisturbed.
(Reprinted with consent from the California Land Use Law & Policy Reporter, Copyright © 2020, 2021, Argent Communications Group (ACG). All rights reserved. No additional dissemination is permitted without additional consent from ACG: reporters@Argentco.com; Tel: 530-852-7222.)
David Ivester
235 Montgomery Street, Suite 935
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630
