Overview of California Water Law and Regulation
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Presented by Kevin Haroff, Shook Hardy & Bacon LLP
LSI Conference on California Water Quality and Its Impact on Water Supply
San Francisco – July 19-20, 2010
• 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
• 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
– Conservation consistent with reasonable and
– 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
• State Water Resources Control Board (SWRCB or State
– 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
– 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
Federal Endangered Species Act (ESA).
– All major federal actions – National Environmental Protection Act
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
– 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:
– Water quality impaired waters under CWA § 303.
– Toxics standards for enclosed bays and estuaries.
– Regional toxic hot spot cleanups.
• 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
• 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
• 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.
Surface Water Rights
• Riparian rights to use (but not store) portion of natural
flow based on ownership of property adjacent to natural
• 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.
• 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).
• 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
• Federal and state Endangered Species Acts, designed to
protect threatened and endangered species and
Kevin Haroff | Shook Hardy & Bacon LLP | www.shb.com
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