Court finds RWQCB violated law by issuing permit to dairies in Central Valley to dispose of waste to groundwater without first making findings that such discharge complied with the state’s anti-degradation policy.

Associacion de Gente Unida por el Agua v. Central Valley Regional Quality Control Board. No. C066410 (2012 DJDAR 15291) (3rd Dist.) (November 6, 2012)

In 2007, the RWQCB issued waste discharge requirements for existing dairies in the Central Valley for the first time. Although the Order purports to prohibit further degradation of groundwater, which the state’s anti-degradation policy requires, the RWQCB failed to make any findings so as to comply with said policy, which was enacted in 1968. Petitioner challenged the Order, which the trial court denied.

The Court of Appeal reversed. First, it found the Order imposed stringent requirements for new and reconstructed waste retention ponds, but did not require existing ponds meet those requirements unless groundwater monitoring demonstrates such ponds are adversely impacting groundwater. The Court noted the Order covered about 1,600 dairies with herds ranging from 30 to 10,000. A single cow produces about 120 pounds of manure and 36.5 pounds of urine daily.

The Order did not require the installation of groundwater monitoring wells unless a domestic or agricultural supply well showed an adverse impact. The Court found that to be an ineffective way to accomplish the timely detection of adverse impacts to groundwater.

To permit discharges into existing “high quality waters,” the RWQCB must make certain findings, including that the activity is 1) consistent with the maximum benefit to the people of the state, 2) will not unreasonably affect beneficial uses, and 3) will not violate water quality standards. It must also require any such discharge to undergo the best practical treatment or control necessary to assure no pollution or nuisance will occur. The RWQCB made none of these findings.

The RWQCB tried to justify its Order by pointing out the Order prohibited any further degradation to groundwater. The Court found the Order prohibited degradation of groundwater without requiring the wells to accomplish that goal. The Court reversed the trial court ruling that the RQWCB did not have to comply with the anti-degradation policy because the groundwater had dropped below high quality since the policy went into effect. The Court held the trial court followed the wrong standard and would make the policy inapplicable any time a proposal is made to discharge wastes to waters degraded since 1968. Following the definition of “high quality water” used by the State Board, the Court concluded the RWQCB must compare the baseline water quality that existed in 1968 with the water quality objectives to determine whether existing water quality is to be protected.

The Court noted there was evidence the nitrate levels was better in some areas than the water quality objectives, which meant at least some of the groundwater met the definition of high quality. The water quality objective for nitrates is 10 mg/l, yet in 1986, the concentration was 2.4 mg/l, and some evidence indicated it was even lower in 1968.

The Court found the RWQCB could not rely upon a general requirement in the Order that the dairies comply with the anti-degradation policy for two reasons. First, the dairies had already caused water quality to degrade and would continue to do so. Second, while the Order only nominally prohibits groundwater degradation, its only provision for detecting that was through monitoring wells, and the record indicated the monitoring requirements were inadequate to detect, much less prevent, degradation. Existing monitoring wells were upgradient, multi-level, supply wells which would not reflect an accurate or timely picture of the groundwater under the dairies. Absent were proper monitoring wells downgradient of the potential problems areas. Therefore, the Court concluded the Order permitted ongoing groundwater degradation.

The Order acknowledged degraded groundwater conditions exist even under dairies that were believed to have good waste management and land application practices. The Court observed how the Order required more stringent requirements for new and reconstructed ponds, but not for existing ponds. The Court was bothered at the circularity of the Order by permitting existing ponds to continue as is unless and until groundwater was shown to be adversely affected. The Court found the Order failed to prescribe required best control technology for existing ponds.

The RWQCB might have been able to adopt portions of the ruling consistent with the state’s anti-degradation policy had it made factual findings consistent with state requirements, but it failed to do so here.

Prepared by John Reaves

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