State and Regional Water Quality Control Boards can incorporate water quality standards and the “Tributary rule” into a Basin Plan.

California Association of Sanitation Agencies v. State Water Resources Control Board

No. A127207 (1st Dist., Div. 4) (August 30, 2012); 2012 DJDAR 12309

A group of Sanitation Districts and the City of Vacaville challenged the State Water Resources Control Board’s approval of the Central Valley Regional Water Quality Control Board’s Water Quality Control Plan in which the Regional Board approved beneficial use designations for the Sacramento and San Joaquin River Basins, including tributaries that did not come under specific review (Basin Plan).

The state must enact regulations that comply with the Clean Water Act (CWA) in order to get and maintain EPA delegation of authority to issue NPDES permits for wastewater discharges under the CWA. A water quality standard must designate the beneficial uses of the water and water quality criteria to protect those uses. Moreover, the Boards must consider past, present, and future probable uses as well as economic considerations.

The 1975 Basin Plan attributed unlisted tributaries with the uses for which the Board attributed the receiving body in a footnote (Tribu

tary rule). A revision in 1995, however, removed that reference and clarified its position; further, it gave the Regional Board discretion to consider the attribution of a tributary on a case-by-case basis. The EPA disapproved of the action, but because the EPA did not craft more stringent regulations, the 1995 Plan remained in effect and was at issue in the present case.

In the interim, in 1988, the state implemented Prop 65, which required all waters of the state to be considered suitable, or potentially suitable, for drinking water supplies (State Board Resolution 88-63). That was incorporated by reference into the Basin Plan.

The City of Vacaville operated its sewage plant as authorized by a NPDES permit, which allowed the discharge of treated water into a creek (tributary). There was also agricultural runoff, so the tributary, as a result, could be dominated by effluent at certain times of the year. The Vacaville operation was four miles from the Delta. The Regional Board issued Vacaville a more stringent NPDES permit in 2001, which made the discharge subject to municipal and domestic water supply (MUN) and cold freshwater habitat standards (COLD) (in essence, making the tributary rule apply with regard to certain chemicals and pesticides). The city petitioned the State board for review, which approved the decision, but which also concluded the 1995 Plan did not dedesignate the uses that had already been designated in the 1975 footnote. So tributaries still had designations even if they had not yet come under specific review. The State Board noted the particular tributary at issue here did not seem likely to be appropriately designated as MUN and COLD, and directed the Regional Board to initiate basin plan amendments.

The city then sought judicial review. The trial court ruled in favor of the Boards. The Court of Appeal affirmed. First, the plaintiff made a timely challenge to the 1995 Basin Plan because suit was filed within three years of the 2001 permit that made the Plan applicable to plaintiff.

The Court agreed with the State Board’s reasoning that any change to the Basin Plan had to be done by an amendment, and that the 1975 “footnote” designation remained in effect. The Court found such designation to be reasonable because it was a “practical solution to an impossible task.” Conversely, the Court observed a blanket removal of the footnote designation would result in over 10,000 tributaries losing designation, which would result in the state being in violation of the CWA.

The Court also agreed the Regional Board is obliged to take action to amend the basin plan where there is evidence the designation is not feasibly attainable, or mandamus (a court order directing action) will lie.

Finally, Water Code section 13241 requires the Regional Boards to consider various factors when setting water quality standards, including economic considerations. The City complained the Board failed to do so here. The Court found, however, that the Board had considered economics in the 1971 and 1995 Basin Plans and could incorporate those considerations by reference here. The Court agreed with a memo by State Board counsel that concluded if economic consequences of adoption of a water quality objective were potentially significant, the regional boards must articulate why adoption of the objective would be necessary to ensure reasonable protection of beneficial uses. Here, however, the City failed to show any discussion of these issues in the record, so the Court concluded there was no basis to conclude the absence of discussion was statutorily meaningful.

Finally, the Court approved the incorporation by reference of drinking water standards promulgated by the Department of Health Services, which included provisions allowing future changes to the standards and analytical methods. The City argued that future changes prevented the Regional Board from considering the factors under section 13241. The Court disagreed that the city was without remedy; the DHS standards were and would be subject to public participation under the Administrative Procedure Act. Last, the Court held the Executive Officer of the Regional Board was empowered to choose the analytical method by which the permittee complied with the permit.

Prepared by John Reaves

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