Posted by: Deirdre Des Jardins | May 14, 2018

WaterFix: Joint Exercise of Powers Agreement and compliance with applicable laws

The Revised Final Joint Exercise of Powers Agreement between the Department of Water Resources and the WaterFix Design and Construction Joint Powers Authority includes a statement of compliance with all applicable laws:

In carrying out its obligations under this Agreement, the Authority and its agents shall comply with all applicable federal, State, or local laws existing during the term of this Agreement, including those pertaining to the use, storage, transportation and disposal of any hazardous substance as that term is defined in such applicable law. (p. 5.)

However, the WaterFix proponents are also seeking to exempt the permits issued for the WaterFix from judicial review. The Fiscal Year 2019 House Interior-EPA Appropriations Bill contains the following language:

    CALIFORNIA WATER INFRASTRUCTURE

SEC. 437. Notwithstanding any other provision of law, the Final Environmental Impact Report/Final Environmental Impact Statement for the Bay Delta Conservation Plan/California Water Fix (81 Fed. Reg. 96485 (Dec. 25 30, 2016)) and any resulting agency decision, record of decision, or similar determination shall hereafter not be subject to judicial review under any Federal or State law.

Appendix C of the Joint Exercise of Powers Agreement contains a long list of permits that will be obtained by the WaterFix Design and Construction Joint Powers Authority, including certification under section 401 and 404 of the Clean Water Act, and under Rivers and Harbors Act section 408 by the Army Corps of Engineers.


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