Background:

In the early and mid 2000’s two cases, Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers 531 US 159 (2001) and Rapanos v. US 547 US 715 (2006), were heard and decided by the United States Supreme Court. These two cases had a major impact on the definition of the term “Waters of the United States” as used to implement and enforce the Federal Clean Water Act. The central issue in these cases was how the Army Corps

would treat non-navigable water ways and wetlands. Prior these rulings the Army Corps of Engineers, in their implementation of the Clean Water Act, began to require permits to dredge and fill bodies of water including wetlands and hydrologically isolated bodies including seasonal vernal pools and bodies of water used by birds for migration. The Supreme Court, in both cases, limited the scope of the Army Corps jurisdiction and also created a significant nexus test to determine whether or not a wetland was to be considered a “Water of the United States”. The Court’s decisions narrowing the scope of the Clean Water Act in a way that could possibly exclude certain wetlands prompted California to develop its own definition of, and permitting procedures for, wetlands to considered “Waters of the State” in order to help protect California’s diminishing wetlands. The State Water Board began this policy development process in 2007 and that process of adopting that policy is nearing completion. In 2015,the EPA and Army Corps released the Clean