Tag: water

First District Holds Regional Water Quality Control Board’s Failure to Impose Mitigation Requirements Through CEQA Process Did Not Preclude it from Later Imposing Those Requirements Pursuant to Its Authority Under the Porter-Cologne Act

The First District Court of Appeal in Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board (2020) 59 Cal.App.5th 199, held that CEQA did not preclude the San Francisco Bay Regional Water Quality Control Board, acting as a responsible agency under CEQA, from imposing additional waste discharge requirements via the Porter-Cologne Water Quality Control Act, beyond the mitigation measures imposed during the CEQA process.

Background

Every 10-20 years, the Upper Berryessa Creek—which drains from the Diablo Range Hills to the Coyote Creek tributary, and ultimately into the San Francisco Bay—floods the nearby areas of Milpitas and San Jose. In the 1980s, the U.S. Army Corps of Engineers began working on plans to build a flood control project on the creek, but the project did not move forward until 2013, when construction of a nearby BART station that could be impacted by flooding was proposed.

In 2015, the Santa Clara Valley Water District (District), acting as the lead agency under CEQA, issued a Draft EIR for the project. That same month, the Corps applied to the San Francisco Bay Regional Water Quality Control Board (RWQCB) for a section 401 Clean Water Act certification for the project.

The District later issued the Final EIR for the project, and the RWQCB’s executive officer issued the section 401 certification. As a CEQA responsible agency, the RWQCB found that all impacts within its jurisdiction would be mitigated to less-than-significant levels but clarified that it would later consider waste discharge requirements (WDRs) pursuant to its authority under the Porter-Cologne Act to address impacts to waters and wetlands that were not handled by the section 401 certificate.

In 2017, when project construction was nearly complete, the RWQCB issued a WDR order that required the Corps and the District to provide addition mitigation for the project’s impacts to waters and wetlands. The order stated that it suspended and replaced the prior 401 certification.

The District filed a petition for writ of mandate against the RWQCB, challenging the WDR order under CEQA, as well as section 401 of the Clean Water Act, the Porter-Cologne Act, and other state laws. The trial court denied the petition. The District appealed.

Court of Appeal’s Decision

On appeal, the District argued the RWQCB violated CEQA because: (1) the RWQCB’s failure to impose mitigation requirements as part of the RWQCB’s CEQA review barred it from imposing mitigation via the WDR order; and (2) the RWQCB prejudicially abused its discretion by failing to support the mitigation requirements with substantial evidence. The Court of Appeal rejected both arguments.

Relying on CEQA Guidelines section 15096, the District argued that the RWQCB’s only opportunity to impose mitigation was through the CEQA process. CEQA Guidelines section 15096 provides that a responsible agency that disagrees with the adequacy of a lead agency’s EIR must either sue the lead agency within 30 days, be deemed to have waived any objections to the EIR, prepare a subsequent EIR if legitimate grounds exist, or, assume the role of a lead agency as provided by Guidelines section 15052, subdivision (a)(3). Because the RWQCB did not challenge the District’s certification of the EIR or find that a subsequent EIR was required, the District argued that the EIR was deemed adequate and no additional mitigation measure could be imposed. As explained by the court, however, Public Resources section 21174 includes a savings clause that makes clear that CEQA does not prevent an agency from exercising it independent authority under statutes other than CEQA. The court determined, therefore, that the RWQCB did not violate CEQA by issuing the WDRs because it did so pursuant to its duties under the Porter-Cologne Act. Although the District, acting as lead agency, had not imposed CEQA mitigation measures requiring WDRs, the RWQCB, as a responsible agency, was not precluded from separately discharging its authority under the Porter-Cologne Act. Although the appellate court noted that unified CEQA review and other environmental regulation should be the norm, there may be times when an agency’s own environmental regulation can take place after CEQA review, as recognized by Public Resources Code section 21174.

The court also rejected the District’s claim that the RWQCB’s WDR order imposed “excessive” mitigation that was not supported by substantial evidence. The court concluded that the District failed to engage in sufficient analysis of the evidence supporting the RWQCB’s conclusions, and therefore, failed to carry its burden. The court also concluded that the District’s arguments lacked merit even if they had been properly briefed because the RWQCB’s determinations were supported by substantial evidence.

– Bridget McDonald

State Water Board Votes to Adopt its Emergency Regulations

On April 1, 2015, Governor Brown issued an executive order directing the State Water Resources Control Board to impose restrictions on water suppliers with the ultimate goal of achieving a statewide 25 percent reduction in potable urban water usage by February 2016. The order also requires certain water users to implement water efficiency measures and prohibits the use of potable water for some types of irrigation.

In response to this order, the Board released draft emergency drought regulations on April 18, subsequently amended on April 28. The regulations, designed to prevent the waste and unreasonable use of water and to promote water conservation, prohibit certain actions such as watering landscapes in a way that creates runoff, watering driveways and sidewalks, and serving water in restaurants except upon request. The regulations aim to conserve 1.3 million acre-feet of water over the next nine months. On May 5th, the Board voted to adopt the regulations.

The draft regulations reflect the input of more than 250 water agencies. Governor Brown has stated he will propose additional legislation to allow local agencies to enforce these regulations through methods such as the imposition of hefty fines for failure to comply with the restrictions.

The conservation savings standards for urban water suppliers will take effect June 1st. Prohibitions applying to all Californians will take effect immediately upon approval of the regulation by the Office of Administrative Law. More information can be found on the Board’s website.

In a Mercifully Brief Opinion, Court Holds that the Regional Water Quality Control Board May Establish Pollution Limits for Water as well as Sediment in Water Bodies in California

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.

 

EPA Releases Final Wetland Connectivity Report Clarifying “Significant Nexus”

The US EPA recently released the final draft of its report on the Connectivity of Streams and Wetlands to Downstream Waters. The purpose of the report is to summarize current scientific understanding about the connectivity and mechanisms by which streams and wetlands affect the physical, chemical, and biological integrity of downstream waters. The focus of the review is on surface and shallow subsurface connections of small or temporary streams, nontidal wetlands, and certain open waters. The report stresses that it neither considers nor sets forth legal standards for Clean Water Act (CWA) jurisdiction, nor does it establish EPA policy.

In 2006, the US Supreme Court decided Rapanos v. United States, where it held that a geographically isolated body of water can be regulated under the CWA only if it has a “significant nexus” to “navigable waters” of the United States. The meaning of “significant nexus” was never clarified. The report on connectivity is meant, in part, to provide insight on this question.

According to the report, scientific evidence “unequivocally” demonstrates that streams, individually or cumulatively, exert a strong influence on the integrity of downstream waters. EPA found that wetlands and open waters in riparian areas and floodplains are physically, chemically, and biologically integrated with rivers via functions that improve downstream water quality. These functions include: the temporary storage and deposition of channel-forming sediment and woody debris; recharge of groundwater sustaining river baseflows; storage of floodwater; retention and transformation of nutrients, metals, and pesticides; and export of organisms or reproductive propogating materials to downstream waters. In addition to providing effective buffers to protect downstream waters from point source and nonpoint source pollution, wetlands and open waters form integral components of river food webs, providing nursery habitat for breeding fish and amphibians, colonization opportunities for stream invertebrates, and maturation habitat for stream insects.

The report recognizes that watersheds are integrated at multiple spatial and temporal scales by flows of surface water and groundwater, transport, transformation of physical and chemical materials, and movements of organisms. Connectivity of streams and wetlands to downstream waters occurs along a continuum that can be described in terms of frequency, duration, magnitude, timing, and rate of change of biotic fluxes to downstream waters. Variations in the degree of connectivity influence the range of functions that streams and wetlands provide. Thus, the incremental effects of individual streams and wetlands are cumulative across entire watersheds and must be evaluated in the context of other streams and wetlands.

DWR Increases Water Deliveries to State Agencies

As California enters its fourth year of drought, the Department of Water Resources (DWR) is increasing the amount of State Water Project (SWP) water allocated to state agencies by 5 percent—from 10 percent of the requested amount to 15 percent. This translates to a total allocation of 635,759 acre-feet annually to 29 agencies, compared to the requested 4,172,686 acre-feet. DWR is able to make this increase thanks to early-December storms that raised reservoir water levels. Last year at this time, no water was initially allocated.

DWR states that this allocation is consistent with the long-term water supply contracts and public policy. DWR considered several factors prior to settling on this increase, such as existing storage, operational constraints (i.e., potential harm to endangered fish), and contractor demands. DWR may revise the allocations over the course of the year based on changing water supply and sustainability conditions.

The two largest regions in terms of water received are the San Joaquin Valley at 170,035 acre-feet, and Southern California at 394,433 acre-feet.

National Marine Fisheries Service Reverses Finding that CWA Streamlined Permitting Program Could Create Jeopardy Under ESA

In a newly issued Biological Opinion, the National Marine Fisheries Service (NMFS) has reversed its 2012 finding that the Clean Water Act’s (CWA) streamlined nationwide permitting program could result in jeopardy under the Endangered Species Act (ESA). Nationwide permits govern actions that have limited environmental impacts, and streamlining is intended to expedite the permitting process for those actions. In contrast, activities the Army Corps of Engineers (Corps) determines may discharge dredged or fill material into waters of the United States, but do not qualify for coverage under a nationwide permit, must be authorized under individual 404 permits.

NMFS emphasized that though streamlining of nationwide permits is now considered acceptable under the ESA, new measures promulgated by the Corps will ensure species are protected. These measures include amending notification requirements, holding semi-annual staff meetings, and improving tracking of the permits’ authorized activities. The Corps also plans to issue guidance specifying that regulated entities must report injuries or death of certain marine species listed under the ESA.

The Corps’ new rules will require pre-construction notifications for activities in jurisdictional waters where impervious surface materials will be used and where the waters are inhabited by listed species or are designated critical habitat under the species law. The Corps also plans to modify a nationwide permit covering utility lines and authorization of some oil and gas infrastructure. The oil and gas industry is concerned that the Biological Opinion might result in limitations on the permit, creating an impasse on new energy infrastructure.

Petition for Writ of Certiorari Submitted to the U.S. Supreme Court Contesting the Ninth Circuit’s Decision Upholding USFWS’s Biological Opinion on Delta Smelt

Under the Endangered Species Act (ESA), if the Secretary of the Interior concludes that a federal agency action will jeopardize a species listed as threatened or endangered, then the Secretary must use the best scientific and commercial data available to identify reasonable and prudent alternatives that are economically and technologically feasible. Petitioners in State Water Contractors v. Jewell presented the U.S. Supreme Court with the following questions related to the Act’s directive: 1) Must the Secretary address in the administrative record the economic and technical feasibility of proposed “reasonable and prudent alternative,” including the effects of the proposed alternatives on third parties? 2) May the Secretary disregard the “best scientific data” on the ground that considering the data would lead to a less “conservative” result, because scientific certainty is impossible, or because the Secretary has considered a range of data in reaching a conclusion?

This case arose after the U.S. Fish and Wildlife Service (FWS) issued a Biological Opinion (BiOp) in 2005 which found that operation of the state’s two largest water projects, the State Water Project and the Central Valley Project, threatened the delta smelt, and thereby curtailed those projects’ operations. The district court found major flaws with the BiOp and ordered FWS to reconsider it, but the Ninth Circuit reversed. The appellate court held that FWS was precluded as a matter of law from considering the economic effects of its proposed restrictions on project operations on Californians. The court also excused FWS’s failure to use the best available scientific data in formulating its opinion. Petitioners argued that the Ninth Circuit’s decision exacerbated the harmful effects of California’s drought, created circuit splits, and contravened the Supreme Court’s precedents.

The BiOp, which the appellate court described as “a big bit of a mess,” concluded that unless the quality and quantity of the delta smelt habitat improved, the smelt would not recover from their downward population trend. The BiOp specified various actions as reasonable and prudent alternatives (RPAs) to the status quo, including limiting the amount of water the projects could pump for certain uses. Petitioners claimed that the amount of water sacrificed to implement the RPAs could have met the needs of over one million households for a year, or irrigated two hundred thousand acres of farmland.

District Court decision

Petitioners brought suit alleging the BiOp violated NEPA, the ESA, and the Administrative Procedure Act. The district court held the BiOp invalid. First, it found FWS had failed to establish that its RPAs met the requirements for a reasonable and prudent alternative under 50 C.F.R. section 402.02, including the requirement that the proposed restrictions be economically and technologically feasible. The court also held that the analyses supporting the specific flow prescriptions set forth in the RPA were fatally flawed and predominantly unsupported, given that 1) FWS failed to use the best available science in calculating flow rates to reduce the number of fish drawn into the pumping stations and 2) the BiOp adopted a flawed methodology to set limits on salinity in the Delta in the autumn of years categorized as above-normal or wet. The court found the agency’s decision “was arbitrary and capricious and ignored the best available science showing that a bias was present.”

Ninth Circuit decision

In a divided panel, the Ninth Circuit reversed. The majority agreed with FWS that the agency was not required to explain why its proposed RPAs met the feasibility standard set forth in the agency’s own regulations. The court also upheld FWS’s decision to use raw salvage data, concluding that normalized data was not tailored to protect the maximum absolute number of individual smelt, as the BiOp’s approach was. The court noted that although ideally FWS would have discussed its reasoning in using that data, the agency’s choice was entitled to deference. One judge sitting by designation from the Eighth Circuit dissented, arguing that because the concerns relating to the RPAs’ feasibility had been raised, FWS was required to at least address those concerns in the BiOp or in the administrative record. The dissent also argued that FWS had failed to use the best available science. The dissent also concluded that the agency’s means of determining where in the Delta the salinity reaches two parts per thousand was arbitrary and capricious, and disagreed with the majority’s decision to ignore the expert witnesses.

Argument for granting the writ

Petitioners described the issues presented as ones of “exceptional national importance.” They argued cert is warranted to resolve a circuit conflict over whether a consulting agency must consider the effects on third parties when proposing reasonable and prudent alternatives to agency action. Furthermore, petitioners noted, whether the ESA requires or precludes an agency from considering the economic impact of its proposed restrictions on agency activity on third parties is a question of recurring importance, given the fact that the federal government conducts thousands of ESA consultations every year. Petitioners argued, that, contrary to the Ninth Circuit’s interpretation, the presence of the feasibility requirement in the definition section of the regulations made the requirement more central to the agency’s obligation of reasoned explanation than it would if the requirement appeared elsewhere. By failing to consider feasibility, petitioners stated, FWS entirely failed to consider an important aspect of the problem, and therefore acted arbitrarily and capriciously. This would not mean that an RPA requirement authorizes FWS to balance the life of delta smelt against the impact of restrictions on project operations; but in choosing among possible alternatives that would avoid jeopardy, an agency would be required to consider the impact of the various effective alternatives on third parties, “in order to avoid unnecessary harm to humans in the course of protecting plants and animals.”

President Obama Signs the Water Resources Reform and Development Act

On June 11, 2014, President Obama signed the Water Resources Reform and Development Act (WRRDA). Historically, water resources legislation has been enacted every two years to provide policy direction to the Army Corps of Engineers (Corps) and the Administration. The WRRDA is the first water resources bill that has been signed since 2007, however.

The WRRDA authorizes 34 federal, state, and local projects aimed at maintaining the nation’s ports, levees, dams, and harbors. For example, the WRRDA authorizes projects to deepen the Boston Harbor and the Port of Savannah, to restore the Everglades, and to strengthen levees in the Sacramento region. The Congressional Budget Office estimates the total cost to implement these projects will be $12.3 billion between 2014 and 2025. This cost will be offset by $18 billion in project deauthorizations contained in the WRRDA.

Some key components of the WRRDA:

  • Authorizes approximately $45 million for flood risk management measures for the Orestimba Creek in the San Joaquin River Basin to protect the City of Newman.
  • Authorizes approximately $689 million for flood risk management measures in the Sutter River Basin.
  • Allows local communities, which may have state or local funding sources, to carry out work in advance of the Corps and receive a credit for this work.
  • Requires the Corps to set firm deadlines for preparing its studies.
  • Expedites project permitting and approvals by reducing the number of studies to be performed by the Corps.
  • Requires the Corps to allow for regional variances regarding vegetation patterns and characteristics on levees, among other variances, with feedback from state, regional, and local entities.
  • Authorizes financial assistance through the Water Infrastructure Finance and Innovation Act of 2014 to carry out pilot projects by public or private entities for flood damage reduction, hurricane and storm damage reduction, environmental restoration, coastal or inland harbor navigation improvement, or inland and intracoastal waterways navigation improvement.
  • Deauthorizes $12 billion for old, inactive port projects.
  • Reforms and preserves the Inland Waterways Trust Fund, which is used to fund the construction and rehabilitation of the nation’s inland waterways system.

In addition to the aforementioned projects, the WRRDA authorizes construction activities to strengthen 24 miles of levees protecting over 100,000 residents and $7 billion in property in the Natomas area, north of downtown Sacramento. Federal maps show that a levee breach could put homes and businesses in the area under 20 feet of water. In 2012, the Sacramento Area Flood Control Agency finished upgrading 18 miles of Natomas levees. The WRRDA authorizes the Corps to complete upgrades to the remaining 24 miles of levees, which had been stalled because of the lack of federal authorization.

Read the full text of the WRRDA here.

Trial Court Rejects Challenge to EIR for Cadiz Valley Groundwater Recovery Project in San Bernardino County, Appeal Likely to Follow

On May 1, 2014, the Orange County Superior Court ruled against petitioners in six related cases and upheld the EIR for the Cadiz Valley Water Conservation, Recovery, and Storage Project.  The court noted its concern over the designation of Santa Margarita Water District as the lead agency for the project under CEQA.  But it concluded that even if the County of San Bernardino would have been a more appropriate lead agency, these concerns did not provide sufficient grounds for the granting of any of the writs sought by petitioners Delaware Tetra and Center for Biological Diversity.

Cadiz, Inc., is a private corporation that owns approximately 34,000 acres in the Mojave Desert portion of eastern San Bernardino County.  A vast groundwater basin capable of holding an estimated 17-34 million acre feet (MAF) underlies the Cadiz property.  The groundwater recovery project would allow Cadiz to sell up to 2 MAF of water that would otherwise become saline and evaporate over the next 100 years.  The project involves pumping and delivering to water providers like the Santa Margarita Water District a total of 50,000 AF a year for 50 years. The participating water districts and water providers could also send their surplus surface water supplies to the Cadiz Valley Project to recharge the groundwater and store it until the water is needed in subsequent years.

Currently, six entities have signed purchase or option agreements with Cadiz: 1) Santa Margarita Water District, 2) Three Valleys Municipal Water District, 3) Suburban Water Systems, 4) Golden State Water Company, 5) Jurupa Community Services, and 6) California Water Service Company.  These entities will receive 80% of the project’s water supplies, while 20% is reserved for future use by water agencies in San Bernardino County.

The project drew CEQA challenges from both the private sector and environmental groups.  Petitioner Delaware Tetra Technologies owns a salt mining operation in the Cadiz and Fenner Valleys of San Bernardino County. The groundwater recovery project threatens the continued operation of the salt mine because it will reduce the flow of saline water that creates salt when it evaporates.

In other suits, petitioners Center for Biological Diversity (CBD) and other conservation groups asserted several CEQA claims, including concern over the potential environmental impacts on nearby springs in wilderness areas and the Mojave National Preserve.   They argue that the project would be growth-inducing because the Santa Margarita Water District will send the groundwater it purchases to support development in Orange County.  The Orange County Superior Court’s Ruling did not specify its rationale for rejecting petitioners’ CEQA arguments.  Instead, the court directed respondents Santa Margarita Water District and the County of San Bernardino to prepare proposed findings as to each petition reflecting that the court adopted the respondents’ arguments but noting that the court had some concerns regarding the lead agency designation.  Counsel for CBD has indicated that it will appeal the decision.