The impacts of the U.S. Supreme Court’s Sackett decision continue to reverberate through agriculture. While many farmers in the West may see relaxed federal regulations, California growers can expect no major changes. State and regional water boards are expanding their roles and plan to fill in where the federal government is pulling back.
Yet the disruption poses bureaucratic delays and significant regulatory uncertainty for rural infrastructure projects that support agriculture—in contrast to Governor Gavin Newsom’s legislative package for accelerating permit approvals. Lawmakers are also considering legislation for next year to help the fee-based water quality boards with the new duties, raising questions over how the state can afford the added costs amid a budget deficit.
“We're driving the car as we fly it,” said Paul Hann, an environmental program manager at the State Water Resources Control Board. “Because we're not quite sure if we have a car or a plane in some cases.”
The board held an annual coordinating meeting last week with its nine regional water boards and devoted much of the two-day summit to assessing the fallout from the Sackett ruling.
Hann explained that the decision is brand new and “there's a lot we don't know.” EPA finalized its revised definition of the “waters of the U.S.” (WOTUS) ahead of the Sackett decision in May, and in August the agency amended the definition. The following month EPA and the Army Corps of Engineers released new rules for certifying water projects, known as 401 certifications, but neither agency has released guidance documents for states—a process that could take years to roll out.
The ruling limited the WOTUS definition to wetlands with a continuous surface water connection. It did not impact state laws, and California has already amended its water code to counter such a regulatory cutback. Senate President pro Tempore Toni Atkins filed Senate Bill 1 in 2019 to resist the Trump administration’s attempts to roll back the Clean Water Act and other water and environmental laws. The contentious proposal to expand the water board’s authority, however, gained heavy agricultural opposition and Newsom eventually vetoed it. Water board chief counsel Michael Lauffer noted at the coordinating meeting that the administration and the public viewed SB 1 as overreach.
Yet the water board was already on a path to amending its rulemaking. It subsequently approved a revised wetlands definition, along with new dredge and fill procedures that spelled out how to implement the change.
“We've been very deliberate about trying to develop our policies in a way that will accommodate the federal government wherever they land,” said Hann.
State water board's Paul Hann and Jonathon BishopThe new procedures overlay any potential federal changes and do not depend on whether the water has state or federal jurisdiction. Currently about 5% of the projects going through the dredge and fill program are considered nonfederal waters of the state and involve a permitting process known as waste discharge requirements, or WDR permits, which are much slower than 401 certifications. Hann anticipates that to jump to at least 25% of the program, with significant implications to the regional boards. The lengthy public hearing and noticing requirements can add months to the permitting timeline and it will task board staff with reviewing wetlands delineations, a duty previously within the realm of the Corps and one that will take substantial capacity building at the boards, explained Hann. It will also take more time for the boards to coordinate with the U.S. Fish and Wildlife Service on endangered species protections.
Yet state regulators are confident they can ramp up their staffing resources to accommodate the changes. The Central Valley Regional Water Quality Control Board oversees 40% of the state’s landmass, along with more than 11,000 miles of surface water bodies, and is accustomed to spikes in permit applications.
“We want to underscore over and over again that all waters of the state—regardless of federal jurisdiction—remain under the authority of the regional boards and the state water board,” said Patrick Pulupa, the regional board’s executive officer. “We can protect every single water in the state of California.”
The board is familiar with issuing WDRs for wineries, dairies, food processors and treatment facilities and has the expertise to back up the authority. Pulupa acknowledged that some degree of projects may drop out of the 401 certifications and not switch to WDRs, testing the new dynamic to see if they can get by without a permit. Yet many of the 401 certifications go to projects for levee repairs or housing construction and he did not expect those developers to risk substantial delays on those investments if their bet fails to deliver, particularly if interest rates continue to rise, which would add more costs to those delays.
The regional board’s greatest regulatory efforts funnel into the dairy and irrigated lands programs, neither of which is significantly affected by the Sackett decision, he explained. Several dairies made the decision decades ago to shift their confined feeding operations out of southern California to the Central Valley to “stay the heck away from surface water bodies” and avoid crushing citizen lawsuits.
Pulupa will be carefully watching agricultural inlets and levees along the southern stretch of the board’s purview, where the jurisdictional lines have been blurry in the past.
Throughout the state, the Corps handled less than 1,500 certifications for “very small” projects—such as repairing utility corridors or highways, constructing pipelines or building houses, each a tenth of an acre or less—and some portion of those are going to require WDR permits, at a cost of a greater staff workload at regional boards, explained Jonathan Bishop, chief deputy director at the state water board.
“They all have very short timelines and they are going to be very unhappy,” he warned.
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Bishop and his staff are developing a general permit to mirror the Corps’ permits and ease the workload for the regional boards. The state board is training up regional staff to handle the permits and build the expertise. Those staff could take on more enforcement duties as well.
“A lot of folks are just not pushing the envelope at this moment,” said Bishop. “But as the case law develops and as people push it around the country, we may see some more of that coming forward.”
He also assumed that some areas of the state “that pride themselves on small government” are going to “latch on to the idea that this allows them to do dredge and fill activities or discharges without a permit,” requiring more board staff on the ground to verify that people are not taking advantage of the situation.
Pulupa called it vital for his staff in the Fresno and Reading offices—and the “more independent minded areas of the state”—to maintain relationships with the irrigation districts, the agricultural communities and municipalities, and to have the difficult conversations before the permitting issues come to a head.
Despite the assurances, the potential impacts to infrastructure projects worried state water board Chair Joaquin Esquivel.
“There's a huge streamlining discussion on infrastructure,” said Esquivel, referring to the governor’s legislative package. “This has the potential to really harm those desires to do more faster, especially with the timelines we have on certain federal dollars.”
Lauffer added that the Legislature has been very interested in this space and lawmakers have been reaching out to the state board to connect staff with policy committees and legislative leadership.
“I expect that there will be significant interest from key legislators next year,” he said.
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