Overview of California Water Law and Regulation

Topics Covered

•  First Principles •  Administrative and Regulatory Agencies •  Water Quality Regulation

–  Porter-Cologne Water Quality Control Act –  Federal Clean Water Act

•  Water Rights and Supply Management •  Other Laws and Regulations

First Principles

•  California Constitution Article X, Section 2. –  Water resources to be put to beneficial use to fullest

extent of which they are capable. –  Waste, unreasonable use, and unreasonable methods

of use. –  Conservation consistent with reasonable and

beneficial use. –  See also Water Code § 100.

•  Water Code § 102: All water (ground and surface water) is property of the people of the State of California, subject to lawful appropriation.

•  Water Code § 106: Highest use is for domestic purposes; next is irrigation.

State Administrative Agencies

•  State Department of Water Resources (DWR) –  Water Code §§ 120-147. –  Part of the California Resources Department. –  Responsible for overall management of state’s water

resources. •  State Water Resources Control Board (SWRCB or State

Board) –  Water Code §§ 174-188.5. 13100 et seq. –  Part of the California Environmental Protection

Agency (Cal EPA). –  Specific adjudicatory (water rights) and regulatory

(water quality) responsibilities.

Regional Water Boards

•  Regional Water Quality Control Board (RWQCB) –  Water Code §§ 13200 et seq. –  Subordinate to SWRCB for regulatory and

administrative purposes. –  Responsible for water quality control and regulation

at a regional level. –  Nine Regions: (1) North Coast, (2) San Francisco Bay,

(3) Central Coast, (4) Los Angeles, (5) Santa Ana, (6) San Diego, (7) Central Valley, (8) Lahonton, and (9) Colorado River Basin.

Principle Federal Agencies

•  U.S. Environmental Protection Agency (EPA) –  General responsibility for water quality regulation at

the national and regional (multi-state levels. –  Federal Clean Water Act (CWA, 42 U.S.C. Chapter 26,

§§ 1251 et seq.) •  U.S. Army Corps of Engineers

–  Specific responsibility for regulation of discharges of dredged or fill material into navigable waters (“waters of the United States”).

–  CWA § 404, 42 U.S.C. § 1344.

Other Administrative Agencies

•  Other state agencies: –  California Department of Fish & Game (DFG).

  California Endangered Species Act (CESA).   Lake and Streambed Alteration Program.

–  Local municipal governments.   Local ordinances (land use regulation).   California Environmental Protection Act (CEQA).

•  Other federal agencies: –  National Marine Fisheries Services (NMFS) and Federal Wildlife

Service (FWS)   Federal Endangered Species Act (ESA).

–  All major federal actions – National Environmental Protection Act (NEPA).

California Porter-Cologne Act

•  Porter-Cologne Water Quality Control Act, Water Code §§ 13000 et seq.

•  Provides for overall regulation under state law of water quality involving all waters of the State of California (surface and groundwater).

•  Provides for specific regulation under federal law of discharges of pollutants to (surface) waters of the United States. –  National Pollutant Discharge Elimination System

(NPDES) permits under CWA § 402, 42 U.S.C. § 1432. –  Chapter 5.5, Water Code §§ 13370 et seq.

Statewide Water Quality Plans

•  State Board sets state plans and policies under Chapter 3, Art. 1. •  Statewide plans:

–  Water quality control plan for enclosed bays and estuaries. –  Ocean plan. –  Thermal plan for control of temperature in coastal and

interstate waters and enclosed bays and estuaries. –  San Francisco Bay/Sacramento – San Joaquin Delta Estuary

Water Quality Control Plan (Bay Delta Plan). •  Statewide policies:

–  Enforcement. –  Water quality impaired waters under CWA § 303. –  Toxics standards for enclosed bays and estuaries. –  Regional toxic hot spot cleanups.

Basin Plans

•  Regional Boards set regional basin plans under Chapter 4, Article 3.

•  Water Code § 13241 - Plans include water quality objectives to ensure: –  Reasonable protection of beneficial uses. –  Prevention of nuisance.

•  Water Code § 13242 – Plans include programs of implementation for achieving water quality objectives.

Waste Discharge Reporting

•  Any person discharging waste, or proposing to discharge waste, that could affect the quality of the waters of the state (other than a community sewer system) must report the discharge to the Regional Board (Water Code § 13260).

•  Failure to report is a misdemeanor and may result in civil administrative or judicial penalties (Water Code § 13261) or injunctive orders (Water Code § 13262).

Waste Discharge Requirements

•  Regional boards issue waste discharge requirements (WDRs) for any discharges other than to community sewer systems (Water Code § 13263).

•  WDRs shall implement relevant water quality control plans and take into consideration: –  Beneficial uses to be protected. –  Reasonably required water quality objectives. –  Other waste discharges. –  Need to prevent nuisance.

Enforcement and Implementation

•  Regional boards may issue cease and desist orders (CDOs) under Water Code § 13301.

•  Cleanup and abatement orders under Water Code § 13304(a) for violations of WDRs or waste discharges that otherwise create or threaten to create “a condition of pollution or nuisance.”

•  Regional board may cleanup and abate waste discharges (or supervise cleanups) – dischargers are liable for the “reasonable costs actually incurred” by the agency (Water Code § 13304(c)).

CWA § 402 Program

•  State Board is authorized to implement the federal NPDE program under CWA § 302.

•  Regional boards are authorized to issue WDRs to persons requiring NPDES permits for the discharge of pollutants to navigable waters in California.

•  State and regional boards are authorized to issue municipal storm water permit for regulated municipalities and industries under CWA § 402.

CWA § 404 Program

•  USACE administers CWA § 404, requiring the issuance of permits for the discharge of dredged or fill material to navigable waters.

•  Regional boards are responsible certifying under CWA § 401(a), 42 U.S.C. § 1341(a), that proposed permitted discharges comply with other applicable requirements of the CWA (including water quality objectives in basin plans adopted under the Porter-Cologne Act).

Water Rights and Supply

•  Public and private rights to use of state waters is subject to principles of reasonable and beneficial use expressed in California Constitution and state statutes.

•  Also subject to Public Trust Doctrine, where State acts trustee of trust resources associated with California’s surface waters, such as navigation, fisheries, recreation, ecological preservation and related beneficial uses, under National Audubon Society v. Superior Court (Cal. Sup. Ct.).

Surface Water Rights

•  Riparian rights to use (but not store) portion of natural flow based on ownership of property adjacent to natural watercourse.

•  Appropriative rights to divert, store, and use water regardless of whether user owns adjacent land. –  Subject to “first in time, first in right” principle. –  Rights other than pre-1914 appropriative rights

subject to SWRCB permit and licensing requirements.

Groundwater Management

•  In general, overlying landowners have the right to extract groundwater so long as: –  Water is put to reasonable and beneficial use. –  Subject to correlative rights of other landowners as

determined by adjudication. •  Exceptions groundwater basins in which a local agency

has statutory authority to manage basin pursuant to groundwater management plans under AB 3030 (1992).

Water Contracts

•  State and federal governments have water right permits to appropriate water for the State Water Project (SWP) and the federal Central Valley Project (CVP).

•  DWR and U.S. Bureau of Land Management (BLM) deliver water to state and federal contractors pursuant to long-term water supply contracts.

•  State and federal law allows for banking and transfers of contracted water under certain circumstances.

Other Laws and Regulations

•  Federal Safe Drinking Water Act (SDWA) setting federal maximum contaminant levels (MCLs) in public drinking water supplies.

•  Federal and state Endangered Species Acts, designed to protect threatened and endangered species and associated habitats.

•  NEPA/CEQA.

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Overview of California Water Law and Regulation

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