Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control BoardAnnotate this Case
Every 10-20 years, Berryessa Creek flooded nearby Milpitas and San Jose. The Army Corps of Engineers named the Santa Clara Valley Water District as a flood control project sponsor. The Corps was responsible for design and construction; the District was to acquire property rights and conduct operations. Regional Water Quality Control Board staff requested that the project include mitigation of wetlands impacts. The Corps refused some of the requested changes as exceeding the scope its authorization from Congress and the environmental review. The District issued a final EIR, finding that the project would have substantial impacts on some aspects of water resources, but that those impacts could be reduced to less-than-significant by mitigation measures.
The Corps applied to the Board for a Clean Water Act section 401 certificate that the project complied with state law, 33 U.S.C. 1341. Because the Corps’ application did not contain wetlands mitigation, the Board deemed the application incomplete. There was pressure to protect a BART station under construction and to avoid losing federal funding. The Board agreed to issue a section 401 certification, indicating that it would subsequently issue waste discharge requirements (WDRs) under the Porter-Cologne Act to address issues that were not handled under the certification. The Board later issued a WDR order requiring additional mitigation, stating that it was rescinding and superseding the section 401 certification, and required enhancement of 15 acres of waters of the state. The Board was willing to allow another of the District’s planned projects to satisfy the requirement.
The State Board denied the District’s petition for review. The court of appeal affirmed the denial of relief. The District has not shown that the allegedly invalid rescission and reissue of the section 401 certification would justify reversal; the Porter-Cologne Act provides independent authority for the WDR order.