Land Use Law Update

March 2007

Like the Camel in the Tent, the SWRCB Moves to Expand Regulation of Upland Areas as Well as Dredge and Fill

In anticipation of a Monday, April 9, 2007 scoping meeting, the State Water Resources Control Board (“SWRCB”) has issued an Informational Document on a “Proposed Wetland and Riparian Area Protection Policy.” Although presented as an effort to “fill the gap” created by recent restrictions on federal jurisdiction over wetlands and dredge and fill activities, previous efforts by the SWRCB suggest that this policy will effectively expand the SWRCB's jurisdiction beyond its statutory limitations. For example, the alternatives call for the regulation of discharges of “dredge or fill material” and activities that impact, but may not be located within, wetlands and “riparian” areas, with no explanation as to the SWRCB's legal authority to regulate either dredge or fill material or to regulate activities outside of waters of the state.

Property owners as well as private or public project proponents should pay close attention to these developments. The SWRCB is accepting both written and oral suggestions on the scope and content of the Informational Document including its range of actions, alternatives, mitigation measures, and potentially significant environmental effects under the California Environmentally Quality Act. The SWRCB has requested submissions by April 9, 2007 at 12 p.m . The scoping meeting is scheduled for:

Monday, April 9, 2007
10:30 a.m.
Sierra Hearing Room – Second Floor
Joe Serna Jr./Cal/EPA Headquarters Building
1001 I Street, Sacramento, CA 95814

Wendy Bogdan is a partner at Downey Brand, LLP where she counsels clients regarding environmental and land use matters including both compliance and litigation related to section 404 of the Clean Water Act, the California Porter Cologne Water Quality Control Act, the state and federal Endangered Species Acts, the National Environmental Policy Act, and the California Environmental Quality Act. She can be reached at (916) 444-1000, ext 6342, or wbogdan@downeybrand.com.

Please note that the information contained in this article is not intended to provide legal advice. You should consult with an attorney and not rely on any information contained herein regarding your specific situation.