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Albert Garland v. Central Valley Regional Water Quality Control Board

October 24, 2012

ALBERT GARLAND, PLAINTIFF AND APPELLANT,
v.
CENTRAL VALLEY REGIONAL WATER QUALITY CONTROL BOARD, DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Butte County, Stephen E. Benson, Judge. (Super. Ct. No. 149654)

The opinion of the court was delivered by: Butz , J.

CERTIFIED FOR PUBLICATION

Affirmed.

This appeal concerns the scope of the government's jurisdiction under the federal Clean Water Act (the Act) to regulate water pollutants. Enacted in 1972, the Act prohibits any person from discharging a pollutant into "navigable waters" --i.e., into "the waters of the United States"--from a "point source" (a discrete conveyance of pollutants) without a permit. (33 U.S.C. §§ 1251 et seq., 1311(a), 1342(a), 1362(7), (12), (14).)*fn1

In Rapanos v. United States (2006) 547 U.S. 715 [165 L.Ed.2d 159] (Rapanos), its most recent decision on the subject, the United States Supreme Court offered three distinct views concerning the Act's jurisdictional scope afforded by the phrase, "the waters of the United States" (§ 1362(7)). As we shall explain, we need not wade into these roiling waters to resolve the matter before us. This is because while the administrative civil liability (ACL) order at issue here is challenged on these jurisdictional grounds, that order is authorized even under the Rapanos view that most narrowly reads the Act's jurisdiction. Consequently, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Albert Garland appeals from a judgment denying a petition for writ of administrative mandate (Code Civ. Proc., § 1094.5) brought by him (and his company, Tehama Market Associates, LLC--collectively, Garland).

Garland challenges a $250,000 ACL order issued against him in 2007 by the Central Valley Regional Water Quality Control Board (the Board) for permit violations of the Act in February 2004. The violations encompassed a conservatively estimated 641,000 gallons of sediment-laden stormwater flowing off the north and east sides of a residential subdivision construction site being developed by Garland.*fn2 This flow entered into adjacent ephemeral drainages encompassing swales, ditches, and culverts (and entered into some wetlands as well, not relevant here) that eventually connected to "waters of the United States"--the Feather River and the Thermalito Afterbay--during high rainfall events.

In October 2007, Garland petitioned for a writ of administrative mandate challenging the ACL order.

In 2009, the trial court, in ruling on that petition, (1) rejected Garland's principal argument, concluding that the law and sufficient evidence supported the Board's finding that the ephemeral drainages were "waters of the United States" as tributaries of the Feather River and the Thermalito Afterbay, and (2) rejected Garland's statute of limitations defense, but (3) remanded for further consideration of Garland's laches defense.

In 2010, the trial court, in ruling on a second petition for administrative mandate brought by Garland after the remand, upheld the Board's rejection of Garland's laches claim. Garland timely filed a notice of appeal from this 2010 judgment.*fn3

DISCUSSION

I. The Issue

Garland contends the Board erroneously concluded that he violated the Act by discharging, without a proper permit, sediment-laden waters into ephemeral drainages adjacent to the construction site, based on the Board's incorrect finding ...


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