BILD Leads Coalition Challenging Expansive New Permitting Program from State Water Board

BILD Foundation is leading a broad-based coalition challenging the proposed “Procedures for Discharges of Dredged or Fill Materials to Waters of the State.”  Through a comment package submitted August 18, 2016 as well as testimony provided at State Water Resources Control Board (State Water Board) meetings on the matter, BILD is continuing in its many years of involvement in the State Water Board’s efforts to regulate wetlands and other waters throughout California. 

Working through its outside counsel, Keith Garner with Sheppard Mullin, LLP, BILD along with a coalition of 30 additional statewide and regional business, planning, agricultural, and water-related organizations provided extensive comments to the State Water Board.  As Mr. Garner explains, “The current proposal is based on questionable legal authority, conflicts with an existing federal regulatory program, and will likely result in significant delay and additional costs for public and private project sponsors.” A full copy of the comments can be found here.

BILD’s comments focused upon several glaring and significant problems with the proposed permitting program.  Highlights of the comments follow:

·         Rather than focusing solely on the narrow band of allegedly unprotected “isolated wetlands” the State Water Board is proposing a broad-based permit program that will conflict with, duplicate, or complicate federal programs as well as other state programs managed by the U.S. Army Corps of Engineers and the California Department of Fish and Wildlife.

·         The program would require a case-by-case analysis to determine when any area is potentially a “water of the State” and fails to contain any definitions as to what the agency considers “water of the State” to be. 

·         The new program lacks clear definitions on what activities would be considered exempt from the new program, when alternatives analyses would be required, and what rules or definitions would apply leading to likely application of the new rules in non-uniform and unclear fashion across the state. 

·         Would impose a new, onerous permit program on all “waters” throughout the state despite statements from the State Water Board staff that only 1% of these “waters” fall outside of federal control presently. 

·         The State Water Board appears to lack authority to implement its new proposals, either under federal or state laws. 

Since BILD and its coalition submitted their comments, numerous other entities have come forward with concerns about the proposed regulations, including the U.S. Army Corps of Engineers, the U.S. Environmental Protection Agency, CalTrans, the California High Speed Rail Authority, and the Department of Water Resources.

BILD awaits a revised draft of the proposed regulations from the State Water Board.

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