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State Water Resources Control Board Sued by City and County of San Francisco and Others Over Approval of Dredge and Fill Procedures

On May 1, 2019, Petitioner San Joaquin Tributaries Authority, a Joint Powers Authority (Petitioner/Authority) filed a petition for writ of mandate in Sacramento County Superior Court against the State Water Resources Control Board (SWRCB).  The Authority includes the City and County of San Francisco as petitioners.  The petition challenges SWRCB’s approval of the “State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State” (Procedures) on April 2, 2019.

SWRCB released the Procedures in January 2019, shortly after President Trump announced his plan to rescind and replace the Obama Administration’s 2015 definition of “Waters of the U.S.”  President Trump’s proposed definition of Waters of the U.S. is more narrow, and would reduce the scope of waters subject to federal regulation under the Clean Water Act, including activities within those waters, such as the discharge of dredge and fill material.

The SWRCB’s Procedures are intended to, among other things, codify California’s regulatory authority over the discharge of dredge and fill material into waters being proposed for exclusion from federal regulation through Trump’s proposed definition.  The Procedures also seek to regulate dredge and fill activities within all “Waters of the State”, which is broadly defined to include “any surface water or groundwater, including saline waters, within the boundaries of the state.”  This broad definition includes all natural wetlands, modified wetlands, and even some artificial wetlands.

The petition challenges SWRCB’s proposed regulation of the dredge and fill activities within the broadly-defined Waters of the State, and alleges that SWRCB’s authority to regulate such activities is limited to only Waters of the U.S.  The petition also challenges SWRCB’s proposed regulation of dredge and fill material as “waste” under the Porter-Cologne Act, and alleges that the definition of waste in the Porter-Cologne Act does not include dredge and fill material.  Plaintiff John Sweeney raised a similar challenge in his recent, unrelated litigation against SWRCB, which is presently pending on appeal.

Jeffer Mangels Butler & Mitchell was actively involved in the SWRCB rulemaking process for the Procedures on behalf of the California Construction and Industrial Materials Association (CalCIMA), to which Kerry Shapiro serves as general counsel.

If you have questions about the Procedures, please contact Kerry Shapiro at KShapiro@JMBM.com.

A copy of the petition is available here: San Joaquin Tributaries Authority Petition

Kerry Shapiro
Kerry Shapiro chairs the Natural Resources & Mining Practice Group at Jeffer Mangels Butler & Mitchell LLP. He has represented the mining, construction and building materials industries on mineral extraction and land development projects for more than 25 years. Kerry also serves as General Counsel to the California Construction and Industrial Materials Association (CalCIMA). Contact Kerry Shapiro at kshapiro@jmbm.com.

Martin Stratte
Martin Stratte is a land use and environmental attorney at Jeffer Mangels Butler & Mitchell LLP. He assists with the entitlement of complex projects throughout California in accordance with CEQA, NEPA, and California’s greenhouse gas emission and climate change regulations. He also represents clients in related litigation. Contact Martin at MStratte@jmbm.com.

JMBM’s Natural Resources & Mining Practice Group
Jeffer Mangels Butler & Mitchell LLP has one of California’s leading natural resources and mining practice groups. The group is comprised of lawyers with over 25 years of practice in law firms, government, and consulting, and provides companies and trade associations with unparalleled counseling, compliance, and litigation services in nearly every area of federal and California natural resources and mining law.