The Second District Court of Appeal in Conway v. State Water Resources Control Board rejected claims that the Regional Water Quality Control Board improperly established “total maximum daily loads” or TMDLs. The court also rejected challenges to the Board’s compliance with CEQA in establishing TMDLs.
The Clean Water Act requires all states to identify polluted water bodies within their jurisdictions. For all such water bodies the state must set TMDLs, which is the maximum amount of pollutants (or load) that a water body can receive from point and nonpoint sources. The Regional Water Quality Control Board has established the TMDLs for pollutants in McGrath Lake. McGrath Lake is surrounded primarily by agricultural fields, as well as petroleum facilities, public roads, and a former landfill. The lake including its lake bed sediment is polluted with pesticides and polychlorinated byphenyls (PCBs).
Owners of private property on the lake will likely be held responsible for remediation of the pollution. They challenged the TMDL established for the lake, arguing that it may only be stated in terms of pollutants in the water. They contend the TMDL is impermissibly stated in terms of concentration of pollutants in lake bed sediment. On this basis, the petitioners argued that the TMDLs violate the Clean Water Act and the state Water Code. They also argued that the TMDL was adopted in violation of the CEQA. The trial court denied their petition for a writ of mandate. The Court of Appeal Sixth Appellate District affirmed, holding that for the purposes of establishing TMDL the lake is both its water and its sediment.
Petitioners’ unsuccessful theory was that TMDL can only regulate the movement of pollutants into the water column, pointing out that the Code of Federal Regulations definition of a “Load” as the “amount of matter [contaminants] introduced into a receiving water.”
The court was not convinced. The court noted that in this case the sediment is wet, it is intermixed with the lake waters, and thus it is part of the lake. The Regional Board could reasonably determine that the lake bed sediment is not a distinct physical environment. Instead, the lake waters and the lake bed sediment form a single physical environment. Notably, pollutants in the sediment leach into the water. The court also noted that the federal regulations give the Board expansive authority for defining how TMDLs are measured, as appropriate to the circumstances: “TMDLs can be expressed in terms of either mass per time, toxicity, or other appropriate measure.”
Petitioners further argued that “other appropriate measure” for measuring TMDL could not include measurement by concentration in the sediment. Petitioners argued that this would present a “slippery slope” towards expansive regulation of activities on land, such as regulation of pesticide use on agricultural land.
The court seemed unwilling to follow petitioners down this rabbithole, reasoning: “But slipping down the slope stops where application of a law or regulation becomes unreasonable.” If it would be unreasonable or absurd to interpret the Clean Water Act and its implementing regulations as applying to land miles from the lake, the law and regulations will not be so interpreted, it held. But this case was not concerned with land miles from the lake, but with the lake bed itself.
The court also rejected, in fairly summary terms, Petitioners’ CEQA challenge. Essentially, Petitioners argued that the Board, which complies with CEQA through a certified regulatory program, had to consider the impacts of whatever remediation activities would be needed to reach the established TMDLs. Petitioners further argued that “dredging” was the only feasible remediation technique, and so the Board had to evaluate the impacts of dredging. The court disagreed. It noted that the adoption of TMDLs was only the first step in the process. The environmental review for that was appropriately tiered, according to the court. The Board had neither planned nor proposed to adopt any particular method for cleanup at this time. Without discussing whether cleanup ought to be at least disclosed as a reasonably future phase of the Project, the court summarily dismissed the CEQA claims. It held cleanup was a decision for the future, and would be subject to further environmental review in the future.