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California Appellate Court Upholds Validity of Amendments to Basin Plan for the Sacramento River and San Joaquin River Basins April 27, 2010 by Joseph M. Carpenter jcarpenter@somachlaw.com |
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On April 13, 2010, the Court of Appeal for the Third Appellate District affirmed the denial of petitions for writ of mandate that challenged the validity of two amendments to the Water Quality Control Plan for the Sacramento River and San Joaquin River Basins (Basin Plan). (San Joaquin River Exchange Contractors Water Authority v. State Water Resources Control Bd. (Cal. Ct. App., April 13, 2010, No. C060697) 2010 Cal.App. LEXIS 514 (San Joaquin River). The court upheld the trial court's determination that the Basin Plan amendments complied with the requirements of federal and state water law and the California Environmental Quality Act (CEQA). Background This case involves two water quality problems in the Lower San Joaquin River – a 130-mile stretch of river from Mendota Dam (west of Fresno) to Vernalis (near Tracy). The first problem concerns high levels of salt and boron, which are caused primarily by operation of the state and federal water pumps, coupled with extensive agricultural land use and associated runoff from the Lower San Joaquin River watershed. The second problem involves low levels of dissolved oxygen in Stockton’s Deep Water Ship Channel (Ship Channel). The oxygen problem is caused by several factors including: the channel’s geometry, which is deeper and wider than the adjacent river segments; reduced flow caused by diversions to Central Valley Project and California State Water Project pumps; and oxygen-demanding substances found in agricultural runoff and wastewater facility discharges. To address these problems, the Central Valley Regional Water Quality Control Board (Regional Board) and State Water Resources Control Board (State Board) approved two amendments to the Basin Plan. The first amendment establishes discharge limits for salt and boron for the Lower San Joaquin River, known as “Total Maximum Daily Loads” (TMDLs) (Salt/Boron TMDL Amendment). Under the Salt/Boron TMDL Amendment, agricultural discharges from irrigated lands in the Lower San Joaquin River area must meet a salinity water quality objective (WQO), known as the Vernalis Salinity WQO, by: (1) stopping discharge unless the discharge is within a numerical limit over a 30-day running average, or (2) operating under a waste discharge requirement that limits salt or under a waiver of that requirement. The implementation program for this TMDL allows releases of salty agricultural drainage water only when the assimilative capacity of the Lower San Joaquin River is high (i.e., “real-time” releases). The second amendment requires studies from entities responsible for oxygen demand in the Ship Channel, which will then be used to set load and wasteload allocations for dissolved oxygen in the channel (DO Amendment). Through petitions for writ of mandate, irrigation water suppliers San Joaquin River Group Authority (River Group) and San Joaquin River Exchange Contractors Water Authority (River Exchange) challenged these amendments, contending that they violate state and federal water law and CEQA. Except for requiring clarification on one issue (whether a substitute for the Salt/Boron TMDL was as effective as a TMDL), the trial court denied the petitions. River Group and River Exchange appealed. The Clean Water Act The federal Clean Water Act, 33 U.S.C. § 1251 et seq., places primary reliance for developing water quality standards on the states (termed, “water quality objectives” in California). (San Joaquin River, supra, 2010 Cal.App. LEXIS 514 at p. *3.) The Clean Water Act focuses on two possible sources of pollution: point and nonpoint. (Ibid.) “Point” sources refer to discrete discharges, such as from a pipe. “Nonpoint” refers to everything else, including agricultural runoff. (Ibid.) When the Clean Water Act’s permit program, applicable to point sources, fails to clean up a river or river segment, states are required to identify such waters and list them in order of priority. (San Joaquin River, supra, 2010 Cal.App. LEXIS 514 at pp. *3‑4.) Based on that listing, known as the “section 303(d) list,” states are to calculate levels of permissible pollution in TMDLs. (Id. at p. *4.) A TMDL defines the maximum amount of a pollutant that can be discharged or “loaded” into the relevant water segment from all sources; a TMDL must be established at a level that will implement the applicable WQO. (Ibid.) Porter-Cologne Water Quality Control Act California implements the Clean Water Act through the Porter-Cologne Water Quality Control Act, Water Code section 13000 et seq. (Porter-Cologne Act). (San Joaquin River, supra, 2010 Cal.App. LEXIS 514 at p. *4.) Under the Porter-Cologne Act, nine regional boards regulate the quality of waters within their regions under the purview of the State Board. (Id. at p. *5.) Regional boards must formulate and adopt water quality control plans, commonly called basin plans, that contain three key components: designation of the beneficial uses of the waters to be protected; WQOs; and a program to meet the WQOs. (Ibid.) WQOs are defined as the limits or levels of water quality constituents or characteristics that are established for the reasonable protection of beneficial uses of water or the prevention of nuisance within a specific area. (Ibid.) The Appellate Court Decision As to the Salt/Boron TMDL Amendment, the court held that the use of the Vernalis Salinity WQO as the water quality objective to be achieved by the amendment in the interim, before the Regional Board develops a specific salinity WQO for the Lower San Joaquin, was supported by the evidence and permissible under the Water Code. The court reasoned that using the Vernalis Salinity WQO complies with statutory and decisional language because the southern Delta (at Vernalis) and the Lower San Joaquin River are reasonably linked as “a specific area” concerning the water quality problem at issue – salt and boron loads. This is because the Lower San Joaquin River flows directly into the southern Delta at Vernalis and is the only source of salts for Vernalis. The court further concluded that the Vernalis Salinity WQO complies with the Water Code because it is designed to protect the beneficial use of water for agriculture, a use for the Lower San Joaquin River designated in the Basin Plan. Next, the court rejected a series of arguments questioning the validity and necessity of the Salt/Boron TMDL Amendment as well as an argument contending that the Salt/Boron TMDL Amendment was not defined properly. As to the DO Amendment, the court held that it did not violate the Clean Water Act because the language of the amendment requires federal agencies to meet state water quality standards to obtain permits for federal projects. Specifically, the amendment provides that any federal project (i.e., Army Corps of Engineers dredging, federal Central Valley Project diversions) that requires a Clean Water Act Section 401 permit, and that has the potential to impact DO conditions in the Ship Channel, must evaluate and fully mitigate those impacts. Finally, the court held that the Regional Board did not violate CEQA by failing to certify an environmental impact report (EIR) for the Basin Plan amendments. Initially, the court confirmed that “certified regulatory programs” under CEQA, like the Basin Plan, are not required to engage in independent review under CEQA so long as a program-generated report contains sufficient environmental analysis. As to the Salt/Boron TMDL Amendment, the court concluded that the Regional Board’s Final Staff Report constituted a proper in-lieu equivalent of an EIR because it provided sufficient environmental analysis, including a description of the project, an evaluation of alternatives, options for implementing the project, an environmental checklist, and a significant discussion of environmental impacts. As to the DO Amendment, the court concluded that because the studies required by the amendment did not have environmental impacts, the Regional Board’s Final Staff Report was not required to contain environmental analysis functionally equivalent to an EIR. Conclusions/Implications Because this decision upholds the validity of a WQO that imposes stricter salinity requirements on agricultural discharges from irrigated lands in the Lower San Joaquin River area, it directly impacts San Joaquin Valley farmers. Farmers on the west side of the San Joaquin Valley where the soils are naturally high in salts and boron will be particularly affected by this decision. Under the WQO as applied, farmers can satisfy the new salinity requirements by either stopping discharge unless the discharge is within the allowable TMDL, or by operating under a waste-discharge requirement permit that limits salt or waives that requirement. The Court’s decision in San Joaquin River Exchange Contractors Water Authority v. State Water Resources Control Bd. is available at http://www.courtinfo.ca.gov/opinions/documents/C060697.PDF. For more information, please contact Joseph M. Carpenter at jcarpenter@somachlaw.com. Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn. |
