Court affirms Regional Water Board’s fines under Clean Water Act for sediment-laden stormwater discharge to ephemeral drainage with hydrologic connection to navigable water.

Garland v. Central Valley Regional Water Quality Control Board

No. C067130 (2012 DJDAR 14745) (October 24, 2012)

A regional water board fined Garland, through an Administrative Civil Liability order, for discharging sediment-laden water into an ephemeral stream without a permit. The Board claimed the sediment would ultimately end up in “the waters of the United States,” thereby subjecting Garland to liability under the Clean Water Act.  The Board conservatively estimated at least 641,000 gallons of such stormwater flowed off a residential construction site being developed by Garland. Garland challenged whether the drainages were “waters of the United States.”

The trail court ruled in favor of the Board, and the Court of Appeal affirmed. The ACL order found the ephemeral drainages to be navigable waters. The Board alternatively found the drainages eventually connected with navigable waters. The Court relied on the latter point (to avoid having to distinguish among the various, hard-to-apply rules that came out of different camps in the Supreme Court plurality decision of Rapanos in 2006). The Court also concluded Garland failed to respond to that basis for the order and had conceded liability.

Prepared by John Reaves

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