By Katherine J. Hart
In San Joaquin River Exchange Contractors Water Authority v. State Water Resources Control Board, et al., (2010) ____ Cal. App.4th ____, a group of public agencies, water contractors, and farmers filed a petition for writ of mandate against the State Water Resources Control Board (“State Board”) under the Clean Water Act (33 U.S.C. § 1251 et seq.) and the California Environmental Quality Act (“CEQA”) (Pub. Resources Code, § 21000 et seq.)
In October 2004 and January 2005, respectively, the Central Valley Regional Water Quality Control Board (“Regional Board”) adopted two basin plan amendments – one for salt and boron in the lower San Joaquin River (“SJR”) and one for Dissolved Oxygen (“DO”) in the Stockton Deep Water Ship Channel (“Channel”). The Salt/Boron amendment established discharge limits or total maximum daily loads (“TMDLs”) and an implementation plan for salt and boron. The DO amendment requires studies be conducted to set a TMDL or load allocation for DO.
The Salt/Boron TMDL
Most Delta waters, including the lower SJR, are impaired for salt and boron. In the 1990s, the State Board directed the Regional Board to adopt salinity objectives and an implementation program for the lower SJR – mainly to protect agriculture since most crops cannot grow in salty water.
Under the Salt/Boron TMDL adopted by the Regional Board in September 2004, agricultural runoff from irrigated lands must stop their discharge unless it meets the limit set by the TMDL over a 30-day running average, or obtain individual waste discharge requirements (or a waiver thereof) limiting its salt discharge to the lower SJR. The implementation plan permits releases of saline drainage into the lower SJR only when assimilative capacity of the lower SJR is high.
The DO Amendment
The Channel is impaired for dissolved oxygen, which negatively impacts fish by essentially suffocating them. To address the issue, the Regional Board adopted the DO Amendment in January 2005. The Regional Board determined there are three causes for this impairment: (1) the geometry of the Channel; (2) reduced flow of water which gets diverted to urban uses; and (3) oxygen-demanding substances such as algae, which is caused by agricultural runoff (a non-point discharge). Under the Amendment, the Regional Board required studies be done to ascertain the load and waste load allocations for each type of discharger; discharges are permitted during the study phase only if the studies are being conducted. Once the studies were complete, the Regional Board would implement a TMDL, although not earlier than December 31, 2009.
Studies on the lower SJR upstream of the Channel – funded by the San Joaquin Valley Drainage Authority – were completed and submitted to the Regional Board in January 2008. Studies downstream of the Channel were authorized in 2008, but never commenced due to the lack of funds. Regardless of whether the studies get completed, dischargers are required to comply with the TMDL on or before December 31, 2011.
Discussion of Claims- Salt/Boron TMDL
Petitioners claimed the Salt/Boron TMDL amendment is invalid for a number of reasons including as follows: (1) the TMDL violates the CWA and the Porter-Cologne Act because it does not implement applicable water quality objectives, (2) the TMDL constitutes an underground regulation, (3) the TMDL is not necessary since Petitioners have been meeting the water quality objectives for salt and boron since 1995, the US Bureau of Reclamation is the sole cause of the salt impairment, there is no evidence of salt impairment in the lower SJR, and the State Board didn’t order a salt/boron TMDL specifically be adopted (e.g., the Regional Board could have addressed the salinity impairment another way), (4) the TMDL improperly defines the load concentrations and does not properly include a maximum daily load, but rather includes a monthly load. The appellate court dismissed all but the last claim – that the TMDL’s 30-day running average is not truly a daily load. It appears, however, that the appellate court merely directed the Regional Board to revise the Salt/Boron TMDL amendment to indicate that the total maximum monthly load is as effective as a total maximum daily load in meeting the salinity water quality objective. It remains to be seen how the Regional Board will deal with this issue.
The Salt/Boron TMDL Amendment was also challenged under CEQA. One key issue was whether the staff report prepared by the Regional Board could be found to be an EIR-equivalent document. The appellate court said it could be because basin planning is a certified regulatory program under CEQA. (Pub. Resources Code, § 21080.5, subd. (a).) Thus, a written report (such as the final staff report at issue) containing sufficient environmental analysis may be prepared in the place of an EIR or negative declaration, depending on the project. Petitioners also alleged the staff report (1) did not adequately describe the project setting and no-project alternatives, (2) did not sufficiently analyze the impacts of constructing and operating infrastructure to implements the TMDL, (3) did not provide sufficient evidence to support the finding that potential impacts to biological resources caused by reduced flows can be mitigated with supplemental freshwater flows to replace irrigation return flows, (4) did not include an adequate statement of overriding considerations, (5) did not consider the growth-inducing impacts the Amendment could have, (6) did not sufficiently analyze the significant impacts to biological resources, and (7) did not adequately address cumulative impacts. In its final CEQA claim, Petitioners contended the Regional Board did not allow sufficient public input and consultation. In rejecting each of Petitioners’ arguments, the appellate court found the final staff report prepared by the Regional Board staff was an adequate EIR-equivalent document, and that a series of eight public workshops spanning four years along with two public hearings – one before the Regional Board and the other before the State Board – and written comments constituted reasonable public participation.
Discussion of Claims – DO Amendment
With respect to the DO TMDL Amendment, Petitioner River Exchange challenged that the Boards distorted the definition of a TMDL, failed to specify what the TMDL load allocation was, and disproportionately made agriculture responsible for fixing the DO impairment by assigning joint and several responsibility to the three impairment factors of geometry (USACE), reduced flow (federal project diversion) and oxygen-demanding substances (e.g., algae and nutrients) (irrigated agriculture, irrigation districts, etc.). This argument burgeons mainly from the fact that the geometry and reduced flow factors are not easily regulated pursuant to the TMDL. Thus, there is a concern irrigated agriculture will be footing the bill for all the required studies or having to cease operations, whereas the Corps and Bureau of Reclamation will remain largely unaccountable for their contributions to the problem. But, the appellate court noted, the TMDL Amendment specifically states that any agency seeking a 401 certification or any other permit from the Regional Board for an activity that would contribute to the DO impairment will be required to evaluate and fully mitigate any impacts, and the TMDL directs both the USACE and USBR to evaluate and mitigate their impacts now, which is sufficient.
Petitioners challenged the EIR-equivalent document for the DO TMDL Amendment claiming the document failed to properly describe the project setting because (1) the report relied upon a study done in 1980 and (2) the flow in the Channel – not the flow in the lower SJR at Vernalis – is the relevant factor for DO impairment. The appellate court dismissed Petitioners’ arguments pointing to two studies conducted in 1997 and 2002, which were also included in the report, and noting it is unquestionably the lower SJR flow at Vernalis which flows into the Channel (despite the intervening diversion to the SWP and the CVP). Petitioners also argued the report deferred impact analysis under the purview of studies, but the court rejected this argument on the grounds that studies do not have environmental impacts and in any event, any projects resulting from such studies would be analyzed under CEQA. As with the Salt/Boron TMDL, CEQA objections to the cumulative impacts analysis and the public participation/consultation process for the DO TMDL Amendment were also made by Petitioners and similarly rejected by the appellate court.
Katherine J. Hart is a senior associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.