0A – Federal, State and Local Laws, Policy and Regulations
Content last updated June 23, 2014
The Federal Water Pollution Control Act, known as the Clean Water Act (33 United States Code [USC] sections 1251 et seq.), is the principal federal statute for water quality protection. In California, the State Water Resources Control Board (State Water Board) and the nine Regional Water Quality Control Boards (Regional Water Boards) implement many of the Clean Water Act’s provisions. The Clean Water Act requires the State to adopt water quality standards and to submit those standards for approval by the U.S. Environmental Protection Agency (U.S.EPA). For point source discharges to surface water, the Clean Water Act authorizes the U.S.EPA and/or approved states (such as California) to administer the National Pollutant Discharge Elimination System program. Clean Water Act section 303(d) requires states to list surface waters not attaining (or not expected to attain) water quality standards after the application of technology-based effluent limits; and, states normally must prepare and implement a Total Maximum Daily Load for all waters on the Clean Water Act section 303(d) impaired waters. The Clean Water Act also establishes a loan program - the State Revolving Fund - for the implementation of water quality improvement projects, including Non-Point Source (NPS) projects.
In the 1987 Clean Water Act amendments, Congress added Clean Water Act section 319 (33 USC section 1329), which required states to develop assessment reports that described the states’ NPS problems, to establish management programs, to address these problems; and, to provide funding to support implementation of the programs. California’s Nonpoint Source Management Plan outlined a general approach to address persistent NPS problems using education and outreach, financial and technical assistance, and regulatory authorities when necessary. To enhance activities to address NPS pollution, states are currently encouraged to upgrade their NPS programs. In 1996, U.S.EPA issued Clean Water Act section 319 program guidance that identified nine key elements that must be addressed to receive U.S.EPA approval for upgraded NPS plans. Pursuant to the 1998 Clean Water Action Plan, states with upgraded NPS programs will receive increased funding based on a federal appropriation for state NPS programs above $100 million. For California to receive additional funding in fiscal year 2000 and beyond, U.S.EPA must certify that California’s NPS Program has been upgraded consistent with the nine key elements.
The Coastal Zones Management Act of 1972 (16 USC sections 1451 et seq.) established a national framework for effective management, protection, development, and beneficial use of the coastal zone. Pursuant to the CZMA, California prepared the California Coastal Management Program that was approved by the National Oceanic and Atmospheric Administration (NOAA). The bulk of California’s coast is within the jurisdiction of the California Coastal Commission pursuant to the Coastal Act of 1976 (Public Resources Code [PRC] sections 30000 et seq.), while the San Francisco Bay Conservation and Development Commission has jurisdiction in San Francisco Bay pursuant to the McAteer-Petris Act Government Code sections 66600 et seq.). The State Coastal Conservancy is a third partner agency in the California Coastal Management Program.
Recognizing that the CZMA did not specifically mention water quality, in 1990 Congress amended CZMA section 306(d)(16) (16 USC section 1455[d]) and added section 6217 (16 USC section 1455b) to focus on NPS pollution problems and the protection of coastal waters. Coastal Zone Act Reauthorization Amendments (CZARA) section 6217 requires state coastal zone management agencies, in coordination with state water quality agencies, to develop and implement management measures to restore and protect coastal waters from adverse impacts of NPS pollution. Similarly, Coastal Zone Management Act section 306(d)(16) requires that state coastal zone management programs contain enforceable policies and mechanisms to implement applicable requirements of CZARA section 6217. To achieve these goals, states were directed to coordinate and integrate their existing coastal zone management and water quality plans and programs, including the states’ NPS management plans.
State Laws Porter-Cologne Act
The Porter-Cologne Act is the principal law governing water quality regulation in California. It establishes a comprehensive program to protect water quality and the beneficial uses of water. The Porter-Cologne Act applies to surface waters, wetlands, and ground water and to both point and nonpoint sources of pollution. Pursuant to the Porter-Cologne Act (California Water Code section 13000 et seq.), the policy of the State is as follows:
- That the quality of all the waters of the State shall be protected,
- That all activities and factors affecting the quality of water shall be regulated to attain the highest water quality within reason, and
- That the State must be prepared to exercise its full power and jurisdiction to protect the quality of water in the State from degradation.
The Porter-Cologne Act established nine Regional Water Boards (based on hydrogeologic barriers) and the State Water Board, which are charged with implementing its provisions and which have primary responsibility for protecting water quality in California. The State Water Board provides program guidance and oversight, allocates funds, and reviews Regional Water Boards decisions. In addition, the State Water Board allocates rights to the use of surface water. The Regional Water Boards have primary responsibility for individual permitting, inspection, and enforcement actions within each of nine hydrologic regions. The State Water Board and Regional Water Boards have numerous NPS-related responsibilities, including monitoring and assessment, planning, financial assistance, and management.
The Regional Water Boards regulate discharges under the Porter-Cologne Act primarily through issuance of NPDES permits for point source discharges and waste discharge requirements (WDRs) for NPS discharges. Anyone discharging or proposing to discharge materials that could affect water quality (other than to a community sanitary sewer system regulated by an NPDES permit) must file a report of waste discharge. The SWRCB and the RWQCBs can make their own investigations or may require dischargers to carry out water quality investigations and report on water quality issues. The Porter-Cologne Act provides several options for enforcing WDRs and other orders, including cease and desist orders, cleanup and abatement orders, administrative civil liability orders, civil court actions, and criminal prosecutions.
The Porter-Cologne Act also implements many provisions of the Clean Water Act, such as the National Pollutant Discharge Elimination System permitting program. Section 401 of the Clean Water Act gives the State Water Board the authority to review any proposed federally permitted or federally licensed activity that may impact water quality and to certify, condition, or deny the activity if it does not comply with State water quality standards. If the State Water Board imposes a condition on its certification, those conditions must be included in the federal permit or license. Except for dredge and fill activities, injection wells, and solid waste disposal sites, waste discharge requirements may not “specify the design, location, type of construction or particular manner in which compliance may be had” (Porter‑Cologne Act section 13360). Thus, waste discharge requirements ordinarily specify the allowable discharge concentration or load or the resulting condition of the receiving water, rather than the manner by which those results are to be achieved. However, the Regional Water Boards may impose discharge prohibitions and other limitations on the volume, characteristics, area, or timing of discharges and can set discharge limits such that the only practical way to comply is to use management practices. Regional Water Boards can also waive waste discharge requirements for a specific discharge or category of discharges on the condition that management measures identified in a water quality management plan approved by the State Water Board or Regional Water Boards are followed.
The Porter-Cologne Act also requires adoption of water quality control plans that contain the guiding policies of water pollution management in California. A number of statewide water quality control plans have been adopted by the State Water Board. In addition, regional water quality control plans (basin plans) have been adopted by each of the Regional Water Boards and get updated as necessary and practical. These plans identify the existing and potential beneficial uses of waters of the State and establish water quality objectives to protect these uses. The basin plans also contain implementation, surveillance, and monitoring plans. Statewide and regional water quality control plans include enforceable prohibitions against certain types of discharges, including those that may pertain to nonpoint sources. Portions of water quality control plans, the water quality objectives and beneficial use designations, are subject to review by U.S.EPA, when approved they become water quality standards under the Clean Water Act.
The State Legislature enacted the California Coastal Act (PRC section 30000 et seq.) to provide for the conservation and planned development of the State’s coastline. The CCA defines the "coastal zone" as the area of the State which extends three miles seaward and generally about 1,000 yards inland. In environmentally sensitive habitat areas where there can be considerable impact on the coastline from inland development, the coastal zone extends to a maximum of 5 miles inland from mean high tide line. In developed urban areas, the coastal zone extends substantially less than 1,000 yards inland. The Coastal Commission's jurisdiction does not extend into or around San Francisco Bay, where development is regulated by the San Francisco Bay Conservation and Development Commission. (PRC § 30103). The CCA also mandates the protection and restoration of coastal waters pursuant to several sections in the PRC. In carrying out these mandates of the CCA, the California Coastal Commission certifies local coastal programs prepared by local governments (PRC section 30500). The CCC also certifies plans prepared by port districts (PRC section 30711 et seq.), colleges and universities (PRC section 30605), and proponents of public works projects (PRC section 30605). In addition, the CCC approves coastal development permits (CDPs), energy projects, and federal (federally approved, conducted, or funded) projects consistent with Coastal Act policies. The CCA mandates all coastal development affeting a wetland to obtain a permit from either the California Coastal Commission or a local govenment with a certified local coastal program. The CCC also conducts education and outreach activities.
The Coastal Act also contains several means to deter and discipline violators of its provisions. To prevent imminent or further damage of coastal resources, the Executive Director of the State Water Board or the California Coastal Commission can issue a cease and desist order to any party that is undertaking a development without a permit or in a manner inconsistent with the terms of a previously issued permit (PRC sections 30809 and 30810). The California Coastal Commission can also order the restoration of a site (PRC section 30811). Civil liability fines for violations of the Coastal Act are specified in PRC sections 30820, 30821.6, and 30822.
California Environmental Quality Act
California is one of 20 states with an environmental impact assessment law, called the California Environmental Quality Act, which is modeled after the National Environmental Policy Act. The State Water Board, Regional Water Boards, and all State and local government agencies must comply with California Environmental Quality Act. The California Environmental Quality Act applies to discretionary activities proposed to be carried out by government agencies, including approval of permits and other entitlements. The California Environmental Quality Act has six objectives:
- To disclose to decision-makers and the public the significant environmental effects of proposed activities,
- To identify ways to avoid or reduce environmental damage,
- To prevent environmental damage by requiring implementation of feasible alternatives or mitigation measures,
- To disclose to the public reasons for agency approvals of projects with significant environmental effects,
- To foster interagency coordination, and
- To enhance public participation.
California Environmental Quality Act sets forth procedural requirements to ensure that the objectives are accomplished and also contains substantive provisions requiring agencies to avoid or mitigate, when feasible, impacts disclosed in an Environmental Impact Report. In addition, California Environmental Quality Act sets forth a series of broad policy statements encouraging environmental protection. These policies have led the courts to interpret California Environmental Quality Act “so as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language” (Friends of Mammoth v. Board of Supervisors  8 Cal 3d 247, 259, 104 Cal. Rptr. 761).
State Water Board Antidegradation Policy
A key policy of California’s water quality program is the State’s Antidegradation Policy. This policy, formally known as the Statement of Policy with Respect to Maintaining High Quality Waters in California (State Water Board Resolution No. 68‑16), restricts degradation of surface and ground waters. In particular, this policy protects water bodies where existing quality is higher than necessary for the protection of beneficial uses. Under the Antidegradation Policy, any actions that can adversely affect water quality in all surface and ground waters must be consistent with maximum benefit to the people of the State, not unreasonably affect present and anticipated beneficial use of the water, and not result in water quality less than that prescribed in water quality plans and policies. Furthermore, any actions that can adversely affect surface waters are also subject to the Federal Antidegradation Policy (40 Code of Federal Regulations section 131.12) developed under the Clean Water Act.
Local Planning, Zoning, and Development Laws
The legal framework within which California cities and counties exercise local planning and land use functions, which can play a critical role in addressing NPS pollution, is provided in the California Planning and Zoning Law (Government Code sections 65000 et seq.) and the Subdivision Map Act (Government Code sections 66410 et seq.), as well as in the California Coastal Act.
Under State planning law, each city or county must adopt a comprehensive, long-term general plan for the physical development of the city or county and any land outside its jurisdiction that bears relation to its planning. Pursuant to Government Code section 65302, general plans must contain seven elements: land use, circulation, housing, conservation, open space, noise, and safety. The following elements are the most relevant to NPS pollution prevention and control:
- Land Use. Designates categories such as housing, industry, and natural resources, including density and intensity of use.
- Conservation. Applies to conservation, development, and use of natural resources (e.g., soils, forests, rivers and other water bodies, and harbors). May also cover watershed protection, land or water reclamation, prevention or control of the pollution of streams and other coastal waters, regulation of land uses along stream channels and in other areas required to implement the conservation plan (e.g., buffer areas), to control or correct soil erosion, and for flood control.
- Open Space. Applies to the preservation of natural resources, including fish and wildlife habitat, rivers, streams, bays and estuaries, and open space.
- Circulation. Plans infrastructure, including water, sewage, and storm drainage.
While the general plan is a long-range look at the future of a community, local zoning ordinance spells out the immediate allowable uses for each property in the community. Traditionally, each property in the community is assigned a “zone” listing the kinds of uses that will be allowed on that land (e.g., single family residential, multi-family residential, neighborhood commercial, light industrial, agricultural) and setting development standards (e.g., minimum lot size, maximum building height, minimum front-yard depth). The distribution of residential, commercial, industrial, and other zones is based on the pattern of land uses established in the community’s general plan. Zoning is adopted by county and/or city ordinances and carries the weight of local law. All local governments use some form of permitting process whereby a permit is issued for a specific project and can be conditioned based on compliance with the zoning ordinance. Cities and counties are moving away from traditional strict zoning designations, to form-based codes. Form-based codes can be contained within a planning document called a “specific plan,” which can completely override the zoning ordinance for a given geographic area. Form-based codes are a new response to urban sprawl, deterioration of historic neighborhoods, and neglect of pedestrian safety often found in new developments. Urban sprawl or greenfield development has multiple environmental impacts, some of which include: loss of arable land, hydromodification impacts, increase in vehicle miles traveled and associated increases in greenhouse gases and ground-level ozone. Greenfield development further perpetuates sprawl as roads are extended to support more new greensfield development. Form-based codes provide local governments the regulatory means to achieve development objectives with greater certainty.
Subdivision regulation, like zoning, is an exercise of police power and is a principal instrument for implementing a general plan. The Subdivision Map Act (Government Code sections 66410 et seq.) sets forth other mandates that must be followed for subdivision processing. Alternatively, floating zones are often written into master-planned suburban communities also referred to as planned urban developments. A floating-zone form-based code does not contain a regulating plan but includes instructions and standards for developers to follow when they prepare a regulating plan for their property (e.g. maximum block dimensions, street types, building types, open space accessibility, sidewalk widths.) A developer submits his or her regulating plan for approval through the rezoning process. Upon rezoning, the floating zone replaces the prior zoning for that property and the regulating plan becomes binding. The local government’s corporate and police powers and zoning and subdivision ordinances are tools commonly used to implement general plans. Preferential assessment of real property can also offer landowners an economic incentive for keeping their land in agricultural, timber, or open space uses. This can serve to implement the land use, open space, and conservation elements of a general plan by reserving areas designated for agriculture, timber, open space, scenic resources, and natural resource use. Local goverments form joint powers agreements creating Councils of Governments for regional policy making and to analyze the relationship between policies in one subject area and its impact upon adjacent regional areas. California Association of Councils of Governments represents California’s Regional Councils of city councilmembers and county supervisors.