Joint Powers Authority Comprised of Irrigation Districts and the City and County of San Francisco Challenge Recently Adopted State Wetland Definition and Procedures for Discharges of Dredge or Fill Material to Waters of the State

The JPA is bringing this challenge to protect members' citizens from economic harm and the uncertainty which the Procedures will undoubtedly cause.  In the petition, the JPA members echo concerns expressed by the regulated community at Water Board workshops and hearings leading up the adoption of the Procedures.  The petition notes that the “regulatory requirements will harm farmers’ and ranchers’ agricultural activities by mandating compliance with new and costly water quality regulations,” and points out that the discretionary nature of the Procedures’ exclusions will lead to “inconsistent application and uncertainty within the regulated community over whether an exclusion will apply.”  Water Board staff has authority to evaluate applications submitted under the Procedures and determine whether any exclusions apply.  Many in the regulated community are concerned about the degree of discretion the Procedures afford Water Board staff not only in determining the extent to which the Procedures apply generally, but also in determining whether an alternatives analysis, which can cost hundreds of thousands of dollars, will need to accompany an application.  
 
Though the outcome of several of the included causes of action remains to be seen, the challenge to the Water Board's regulation of “waste” under Porter-Cologne is noteworthy, as it is an issue upon which a plaintiff recently prevailed in litigation against the Water Board in Solano County Superior Court earlier this year.  (Sweeney & Point Buckler Club, LLC v. San Francisco Bay Conservation and Development Commission, et al., Solano County Superior Court, Case No. FCS048861, decided December 26, 2017).  That case is currently being appealed.  However, if the Sacramento County Superior Court finds its sister court's determination persuasive this challenge could in fact prevent official adoption and implementation of the controversial Procedures.  We will post updates as additional information regarding the petition becomes available.
 

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