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San Joaquin River Exchange Contractors Water Authority v. State Water Resources Control Board

April 13, 2010; as modified May 5, 2010

SAN JOAQUIN RIVER EXCHANGE CONTRACTORS WATER AUTHORITY, PLAINTIFF AND APPELLANT,
v.
STATE WATER RESOURCES CONTROL BOARD ET AL., DEFENDANTS AND RESPONDENTS.
SAN JOAQUIN RIVER GROUP AUTHORITY, PLAINTIFF AND APPELLANT,
v.
STATE WATER RESOURCES CONTROL BOARD ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of Sacramento County, Lloyd G. Connelly, Judge. Affirmed. (Super. Ct. Nos. 06CS01243, 06CS01244, 06CS01310).

The opinion of the court was delivered by: Butz, J.

CERTIFIED FOR PUBLICATION

This appeal involves two water quality problems in the San Joaquin River. The first problem concerns high levels of salt and boron in a 130-mile stretch from Mendota Dam (west of Fresno) to Vernalis (near Tracy), a stretch referred to as the Lower San Joaquin River. The second problem involves low levels of dissolved oxygen in Stockton's Deep Water Ship Channel (Ship Channel).

To address these problems, respondent Central Valley Regional Water Quality Control Board (Regional Board), and in turn respondent State Water Resources Control Board (State Board; collectively, the Boards), approved two amendments to the Water Quality Control Plan for the Sacramento River and San Joaquin River Basins (Basin Plan).

The first amendment establishes discharge limits for salt and boron, known as "Total Maximum Daily Loads" (TMDL's), and sets forth an implementation program. We refer to the first amendment as the "Salt/Boron TMDL Amendment."

The second amendment requires studies from entities responsible for oxygen demand in the Ship Channel, which will then be used to set a TMDL for dissolved oxygen (DO) in the channel. We refer to the second amendment as the "DO Amendment."

Through petitions for writ of mandate, and now on appeal, appellants San Joaquin River Group Authority (River Group) and San Joaquin River Exchange Contractors Water Authority (River Exchange) contend that these amendments violate state and federal water law and the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). River Group and River Exchange are comprised of public agencies and mutual water companies that supply irrigation water to San Joaquin Valley farmers.

We shall affirm in full the trial court's thorough and well- reasoned decision, which denied the petitions except for one issue: whether a substitute for the Salt/Boron TMDL was as effective as a TMDL.

FACTUAL AND PROCEDURAL BACKGROUND

The two water quality amendments at issue flow from state and federal water quality law. In a nutshell, that law is as follows.

Federal Law

The federal Clean Water Act (the 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). (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 697, fn. 11 (SWRCB Cases); City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1403 (City of Arcadia); Wat. Code, §§ 13050, subd. (h), 13241; 40 C.F.R. § 130.2(d).)

The Clean Water Act focuses on two possible sources of pollution: point and nonpoint. (City of Arcadia, supra, 135 Cal.App.4th at p. 1403.) "Point" sources refer to discrete discharges, such as from a pipe. (Ibid.) "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. Based on that listing, known as the "section 303(d) list" (Clean Water Act of Oct. 18, 1972, Pub.L. No. 92-500; 86 Stat. 846, § 303(d), codified in 33 U.S.C. § 1313(d)), states are to calculate levels of permissible pollution in TMDL's (i.e., total maximum daily loads). (City of Arcadia, supra, 135 Cal.App.4th at p. 1404.)

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 water quality objective. (City of Arcadia, supra, 135 Cal.App.4th at p. 1404.) A TMDL is comprised of a "wasteload allocation" that applies to point sources, a "load allocation" that applies to nonpoint sources, and a "margin of safety" to account for any lack of knowledge concerning the relationship between the pollutant and water quality. (Id. at pp. 1404-1405.)

State Law

"California implements the Clean Water Act through the Porter- Cologne [Water Quality Control] Act (Wat. Code, § 13000 et seq.) . . . . Under the Porter-Cologne Act, nine regional boards regulate the quality of waters within their regions under the purview of the State Board. (Wat. Code, §§ 13000, 13100, 13200, 13241, 13242.)

"Regional boards must formulate and adopt water quality control plans, commonly called basin plans, which designate the beneficial uses [of the water] to be protected, water quality objectives and a program to meet the objectives. (Wat. Code, §§ 13050, subd. (j), 13240.) `"Water quality objectives" [WQO's] means the limits or levels of water quality constituents or characteristics which are established for the reasonable protection of beneficial uses of water or the prevention of nuisance within a specific area.' (Id., § 13050, subd. (h).)" (City of Arcadia, supra, 135 Cal.App.4th at p. 1405.)

With this legal background in mind, we provide a brief background of the two water quality amendments at issue. We will add facts as necessary in discussing the issues on appeal.

Salt/Boron TMDL Amendment

The Lower San Joaquin River (running northward from Mendota Dam to Vernalis) is on California's section 303(d) list of impaired waters due to high levels of salt and boron.

The salt and boron impairment in the Lower San Joaquin River has occurred primarily from large-scale water development coupled with extensive agricultural land use and associated runoff (largely from western San Joaquin Valley farmers) into the Lower San Joaquin River watershed. The large-scale water development referred to is the federal Central Valley Project, which diverts Sierra Nevada mountain-fed San Joaquin River water to the southern San Joaquin Valley, replacing it with water pumped from the Delta through the Delta-Mendota Canal to irrigate the agricultural west side of the San Joaquin Valley.

In its 1995 Bay-Delta Plan for water quality control in the Delta, the State Board adopted a salinity WQO to be measured near Vernalis (at the southern tip of the Delta). (See SWRCB Cases, supra, 136 Cal.App.4th at p. 701.) In 1999, the State Board adopted Water Right Decision 1641, which implements this "Vernalis Salinity WQO." The Bay-Delta Plan and Decision 1641 also directed the Regional Board to adopt salinity objectives and an implementation program for the Lower San Joaquin River.

Under the Salt/Boron TMDL Amendment approved by the Boards, agricultural dischargers of runoff from irrigated lands in the Lower San Joaquin River area must meet the Vernalis Salinity WQO (1) by stopping discharge unless the discharge is within a numerical limit over a 30-day running average, or (2) by 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).

DO Amendment

The Ship Channel is on California's section 303(d) list of impaired waters due to low levels of DO.

The Regional Board determined that the Ship Channel's low DO level is caused jointly and severally by three factors: (1) the channel's geometry (deeper and wider than the adjacent river segments); (2) reduced flow (river flow is diverted to Central Valley Project and State Water Project pumps near Tracy); and (3) oxygen-demanding substances (agricultural runoff and wastewater facility discharges cause algae growth). Of these three factors, only the oxygen-demanding substances are a waste-discharge (i.e., load) factor.

The DO Amendment is different from the Salt/Boron TMDL Amendment in that it only requires, for now, certain studies to be performed to obtain information to set a TMDL for oxygen-demanding substances later. A three-step program is involved, with only the first step actually at issue here. First, entities responsible for point and nonpoint sources of oxygen-demanding substances (and their precursors) must perform certain studies to establish wasteload and load allocations. This part of the program allows discharges to continue in the interim if the studies are being done. Second, the Boards, using the studies, are to implement a TMDL in December 2009 or later. And, third, parties such as River Group and River Exchange must comply with the TMDL on or before the end of 2011.

Additionally, the Regional Board instructed that agencies responsible for the Ship Channel's design geometry and reduced flow reduce their oxygen demand factors.

DISCUSSION

I. Standard of Review Under Water Law and CEQA

Water quality control plans, including the establishment of a TMDL, are quasi-legislative, scientific-based administrative actions subject to deferential review under the traditional mandamus standard. That standard asks whether the agency's action was arbitrary, lacking in evidentiary support, or contrary to law. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 570, 572; Klajic v. Castaic Lake Water Agency (2001) 90 Cal.App.4th 987, 995; State Water Resources Control Bd. v. Office of Admin. Law (1993) 12 Cal.App.4th 697, 701-702; Pub. Resources Code, § 21168.5.)

II. Water Law Issues: Salt/Boron TMDL Amendment

A. The Vernalis Salinity WQO Is Applicable to the Salt/Boron TMDL Amendment

River Group contends that the Salt/Boron TMDL Amendment violates the federal Clean Water Act and the state Porter-Cologne Act by failing to implement an applicable WQO. Specifically, River Group asserts that the Vernalis Salinity WQO, which was used for this TMDL, applies only to the southern Delta and not to the Lower San Joaquin River. We disagree.

The Boards note that the Regional Board is currently developing salinity WQO's upstream of Vernalis (i.e., the Lower San Joaquin River), which will be adopted in a future Basin Plan amendment; the existing Vernalis Salinity WQO is being used in the interim.

This use of the Vernalis Salinity WQO, as the Boards argued, makes sense, and is a reasonable administrative action supported by the evidence. Vernalis is at the northern or downstream boundary of the Lower San Joaquin River, where it flows directly into the southern Delta. Vernalis is the farthest downstream point on the San Joaquin River unaffected by tidal influences and salts from San Francisco Bay and therefore receives salt only upstream from the Lower San Joaquin River; salt and boron loads at Vernalis are equal to the total load from the entire Salt/Boron TMDL project area.

River Group counters that, under the state Porter-Cologne Act, WQO's "are established for the reasonable protection of beneficial uses of water or the prevention of nuisance within a specific area." (Wat. Code, § 13050, subd. (h).) Along similar lines, River Group points to language in this court's opinion in the SWRCB Cases, supra, 136 Cal.App.4th 674, that "[t]he southern Delta agricultural salinity objectives in the 1995 Bay-Delta Plan, including the Vernalis salinity objective, were formulated specifically to maintain an adequate level of protection for agriculture in the southern Delta." (Id. at p. 744.)

This statutory and decisional language, however, does not render the Vernalis Salinity WQO inapplicable to the Salt/Boron TMDL Amendment given that Vernalis receives salt only upstream from the Lower San Joaquin River and that the Lower San Joaquin River flows directly into the southern Delta at Vernalis. These facts reasonably link the southern Delta (at Vernalis) to the Lower San Joaquin River as "a specific area" concerning the water quality problem at issue here--salt and boron loads flowing down the Lower San Joaquin River to Vernalis.*fn1 Also, as the trial court noted, the record shows that, in line with the "beneficial use[]" language set forth in the Porter-Cologne Act (Wat. Code, § 13050, subd. (h), the Vernalis Salinity WQO is designed to protect the beneficial use of water for agriculture, a use for the Lower San Joaquin River designated in the Basin Plan.

B. Water Code Section 13241 Factors and Underground Regulation Involving Salt/Boron TMDL Amendment

River Group argues that the Salt/Boron TMDL Amendment, by applying the Vernalis Salinity WQO upstream of the southern Delta (i.e., to the Lower San Joaquin River), either amended an existing WQO or adopted a new one. Either way, River Group continues, the Salt/Boron TMDL Amendment constitutes an illegal underground regulation because the TMDL proceeding was not noticed as one adopting a new or revised WQO and because the factors set forth in Water Code section 13241 for "establishing water quality objectives" were not considered (these factors include past, present, and future beneficial uses; environmental characteristics; water quality conditions; and economic considerations). (Wat. Code, § 13241.) We disagree.

As for notice, as the trial court pointed out, the record is replete with notice that the Regional Board was using the Vernalis Salinity WQO as the water quality objective to be achieved by the Salt/Boron TMDL Amendment for the Lower San Joaquin River.

As for the Water Code section 13241 factors, they apply, in the words of that statute, "in establishing water quality objectives." (Wat. Code, § 13241, italics added.) The Vernalis Salinity WQO was already established. In this vein, the Regional Board noted that the Salt/Boron TMDL Amendment did not establish a WQO, but rather was a "program of implementation for achieving water quality objectives" in the words of Water Code section 13242, for which the section 13241 factors need not be considered. (Wat. Code, § 13242.) In light of what we said in the previous section of this opinion concerning the geographical and salinity linkage between Vernalis and the Lower San Joaquin River, this may be considered a distinction with a difference. (This analysis also disposes of River Exchange's contention that the Boards prepared an inadequate economic analysis required by Wat. Code, § 13241.) (Wat. Code, § 13241, subd. (d) ["Economic considerations" is a factor to consider in establishing a WQO].)

In any event, lest we be accused of splitting hairs, the trial court also stated, supported by citations to the record (and bolstered by additional citations we have found), that the Regional Board "developed the [Salt/Boron TMDL Amendment] based on the Vernalis standard in thorough technical studies which effectively considered the factors that the board is required to consider under Water Code section 13241 in . . . establishing [WQO's]."

C. The Necessity of the Salt/Boron TMDL Amendment

In a series of related contentions, River Group and River Exchange question the necessity for the ...


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