Third District Court of Appeal Holds that Stormwater Discharge from a Construction Site into Ephemeral Ditches which are Tributaries to Waters of the United States is a Violation of the Clean Water Act.

On October 24, 2012, the Third District Court of Appeal upheld the trial court’s ruling in Albert Garland v. Central Valley Regional Water Quality Control Board (2012) __Cal.App.4th__ (Case No. C067130). The case involves the question of whether the discharge of stormwater with sediment from a residential construction into adjacent ephemeral drainages encompassing swales, ditches, and culverts that eventually connected to waters of the United States was sufficient to trigger Clean Water Act violations under the federal Clean Water Act.

The trial court denied a petition for writ of administrative mandate challenging a $250,000 administrative civil liability (ACL) order issued against petitioner by the Central Valley Regional Water Quality Control Board (Board) for permit violations of the Clean Water Act (Act). The court affirmed the judgment, holding that the order was authorized even under the view in Rapanos v. United States (2006) 547 U.S. 715 that most narrowly reads the Act’s jurisdiction. In issuing the ACL order against petitioner, the Board found that the ephemeral drainages, into which petitioner discharged the construction site stormwater runoff, were tributaries to downstream navigable waters.

The discharge in question encompassed 641,000 gallons of sediment-laden stormwater flowing off the sides of a residential subdivision construction site being developed by Garland. The Board showed that a $250,000 ACL order could have been based on as little as 25,000 gallons of polluted discharge under Water Code, section 13385. The stormwater flowed into ephemeral drainages adjacent to the construction site, which are tributaries of the Feather River and the Thermalito Afterbay.

The board argued that regardless of whether the ephemeral drainages at issue constituted waters of the United States, Garland should remain liable for discharging pollutants into waters of the United Stated under the alternative rationale for the ACL order that the discharge traveled through point sources to waters of the United States. The District Court of Appeal concluded that the Board acted properly in issuing the ACL order against Garland on that basis.