Trial Court Contra Costa County Superior Court Trial Judge Honorable David B. Flinn (Contra Costa County Super. Ct. No. CIV030956)
The opinion of the court was delivered by: Rivera, J.
CERTIFIED FOR PUBLICATION
Plaintiffs California Association of Sanitation Agencies (CASA) and the City of Vacaville (Vacaville) (collectively, the Municipalities)*fn1 appeal a judgment entered after the trial court denied their petitions for writ of mandate challenging actions of the California Regional Water Quality Control Board for the Central Valley Region (Regional Board) and the State Water Resources Control Board (State Board) (collectively, the Boards). They contend beneficial use designations in the Water Quality Control Plan for the Sacramento and San Joaquin River Basins (the Basin Plan) are unlawful, and that the Basin Plan unlawfully incorporates by reference standards and criteria adopted by other agencies. We shall affirm the judgment without prejudice to any right Vacaville may have to seek further Basin Plan amendments or initiate legal proceedings.*fn2
In order to provide a legal context for the history of this case, we summarize the statutory and regulatory scheme governing water quality.
A. Statutes and Regulations
"In 1972, Congress enacted amendments (Pub.L. No. 92-500 (Oct. 18, 1972) 86 Stat. 816) to the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), which, as amended in 1977, is commonly known as the Clean Water Act. . . . [T]he act established 'effluent limitations,' which are restrictions on the 'quantities, rates, and concentrations of chemical, physical, biological, and other constituents'; these effluent limitations allow the discharge of pollutants only when the water has been satisfactorily treated to conform with federal water quality standards. (33 U.S.C. §§ 1311, 1362(11).) [¶] Under the federal Clean Water Act, each state is free to enforce its own water quality laws so long as its effluent limitations are not 'less stringent' than those set out in the Clean Water Act. (33 U.S.C. § 1370.)" (City of Burbank v. State Water Resources Control Bd. (2005) 35 Cal.4th 613, 619-620 (City of Burbank).)
The Clean Water Act required the states to adopt and submit to the EPA water quality standards for intrastate waters by April, 1973. (33 U.S.C. § 1313, subd. (a)(2) & (3).) Those standards were to consist of the designated uses of the navigable waters involved and the water quality criteria for the waters based on those uses. (33 U.S.C. § 1313, subds. (c)(2)(A).)
"Part of the federal Clean Water Act is the National Pollutant Discharge Elimination System (NPDES), '[t]he primary means' for enforcing effluent limitations and standards under the Clean Water Act. [Citation.] The NPDES sets out the conditions under which the federal EPA or a state with an approved water quality control program can issue permits for the discharge of pollutants in wastewater. (33 U.S.C. § 1342(a) & (b).)" (City of Burbank, supra, 35 Cal.4th at p. 621.)
"In California, the controlling law is the Porter-Cologne Water Quality Control Act (Porter-Cologne Act), which was enacted in 1969. (Wat. Code,[*fn3 ] § 13000 et seq., added by Stats. 1969, ch. 482, § 18, p. 1051.) Its goal is 'to attain the highest water quality which is reasonable, considering all demands being made and to be made on those waters and the total values involved, beneficial and detrimental, economic and social, tangible and intangible.' (§ 13000.) The task of accomplishing this belongs to the [State Board] and the nine Regional Water Quality Control Boards . . . . [¶] Whereas the State Board establishes statewide policy for water quality control (§ 13140), the regional boards 'formulate and adopt water quality control plans for all areas within [a] region' (§ 13240). The regional boards' water quality plans, called 'basin plans,' must address the beneficial uses to be protected as well as water quality objectives, and they must establish a program of implementation.[*fn4 ] (§ 13050, subd. (j).) Basin plans must be consistent with 'state policy for water quality control.' (§ 13240.)" (City of Burbank, supra, 35 Cal.4th at p. 619, fns. omitted.)
Shortly after the Clean Water Act was adopted, the Porter-Cologne Act was amended to add the necessary requirements so that California could obtain EPA approval to issue NPDES permits. (§ 13370, subd. (c).) (Building Industry Assn. of San Diego County v. State Water Resources Control Bd. (2004) 124 Cal.App.4th 866, 875.) Accordingly, "the waste discharge requirements issued by the regional water boards ordinarily also serve as NPDES permits under federal law. (Wat. Code, § 13374.)" (Ibid.)
" '[T]he proper scope of the controls in an NPDES permit depends on the applicable state water quality standards for the affected water bodies. [Citation.]' [Citation.] 'Under the . . . NPDES permit system, the states are required to develop water quality standards. [Citations.] A water quality standard "establish[es] the desired condition of a waterway." [Citation.] A water quality standard for any given waterway, or "water body," has two components: (1) the designated beneficial uses of the water body and (2) the water quality criteria sufficient to protect those uses. [Citations.]' [Citations.]" (City of Arcadia v. State Water Resources Control Bd. (2010) 191 Cal.App.4th 156, 163 (City of Arcadia).) In prescribing waste discharge requirements and in establishing water quality objectives, the regional boards are required to consider a number of factors, including "[p]ast, present, and probable future beneficial uses of water" and "economic considerations" (§§ 13241, subds. (a) & (d), 13263, subd. (a)).*fn5
II. FACTS AND PROCEDURAL HISTORY
At issue are three aspects of the Basin Plan: The "tributary language," the incorporation of State Board Resolution 88-63 setting forth the "Sources of Drinking Water Policy," and the Plan's "water quality objectives." We discuss each in turn.
1. The Tributary Language
The Regional Board initially adopted its Basin Plan in 1975. The Basin Plan defined various "beneficial uses" of surface waters and groundwater. Among those beneficial uses were Municipal and Domestic Supply (MUN), which included "usual uses in community or military water systems and domestic uses from individual water supply systems"; and Cold Freshwater Habitat (COLD), which "provides a coldwater habitat to sustain aquatic resources associated with a coldwater environment." The 1975 Basin Plan included a table designating beneficial uses for a number of surface water bodies (a later version of which was known as Table II-1), and included a footnote stating, "[t]hose streams not listed have the same beneficial uses as the streams, lakes, or reservoirs to which they are tributary." This footnote is referred to as the "tributary rule" or the "tributary footnote." COLD and MUN were designated as beneficial uses of the Delta. No designations were specified for Old Alamo Creek and New Alamo Creek, which are tributaries to the Delta and two of the water bodies at issue here.
A 1994 Regional Board staff report recommended a modification of the tributary language. The report stated that when the Basin Plan was first adopted, the beneficial use designations were incomplete, listing only 96 of the region's estimated 10,000 waters. According to the report, "The Regional Water Board envisioned that, in the ensuing years, there would be a continuing planning process in which tributaries of the major water bodies would be investigated in some priority fashion, and the beneficial uses of these tributaries would be identified and designated in periodic amendments to the Basin Plan. In the interim, the Regional Water Board knew it would need to make decisions involving waters not named in [the Basin Plan] and for which little detailed information was available. The tributary footnote was thus conceived to bridge the information gap and provide guidance until factual information was available." As of 1994, however, the Basin Plan's beneficial use designations had not yet been completed. The report continued, "The tributary footnote, intended as a temporary palliative for the lack of beneficial use information when formulating tentative waste discharge requirements and enforcement documents, is being misunderstood and misused by various parties. The Regional Water Board never intended that the footnote serve as the foundation for establishing water quality objectives. And, the Regional Water Board certainly never intended that the footnote should prevail over findings of scientific fact . . . ."
The report proposed deleting the tributary footnote and adding new "clarifying language" to the 1995 Basin Plan, describing the proposed language as an attempt "to more explicitly describe how the Regional Water Board applies beneficial uses, in the absence of scientific fact, to waters tributary to the water bodies listed in [the Basin Plan]. . . . This alternative would eliminate much of the confusion caused by the wording of the tributary footnote, without changing its intended meaning." The report continued, "The proposed language eliminates present and future problems of misinterpretation and misuse, and removes a known falsehood from the Basin Plan. This approach allows for collection of information to better determine what beneficial uses need to be protected. It avoids the problems created by applying inaccurate beneficial uses to some water bodies. The proposed language clarifies how the Regional Water Board already interprets the tributary statement in the existing Basin Plan."
In the 1995 Basin Plan, the tributary footnote was deleted and the clarifying language proposed in the 1994 Regional Board staff report was added.*fn6 The pertinent portion of the 1995 Basin Plan read: "Existing and potential beneficial uses which currently apply to surface waters of the basins are presented in Figure II-1 and Table II-1. The beneficial uses of any specifically identified water body generally apply to its tributary streams. In some cases a beneficial use may not be applicable to the entire body of water. In these cases the Regional Water Board's judgment will be applied. [¶] It should be noted that it is impractical to list every surface water body in the Region. For unidentified water bodies, the beneficial uses will be evaluated on a case-by-case basis."
In 2000, the Environmental Protection Agency (EPA) disapproved certain aspects of the 1995 revision of the Basin Plan; these aspects included the deletion of the tributary footnote and the addition of the new language providing that the beneficial uses of specifically identified water bodies generally applied to its tributary streams and that where a beneficial use was not applicable to an entire body of water, the Regional Board's judgment would be applied. The EPA reasoned that the amended language gave the impression that the uses applicable to any given tributary could be designated or modified "on a case-by-case basis simply by an exercise of judgment by the Regional Board, and may vary depending upon the situation at hand." The deleted tributary footnote, on the other hand, according to the EPA, "in effect, established uses for all tributary streams not identified by name in Table II-1. The Regional Board has not demonstrated that any of those uses that were so designated as existing uses are not, in fact, existing uses (as defined in 40 CFR 131.3(e)), nor has the Regional Board demonstrated (as required by 40 CFR 131.10(g) for the removal of designated uses that are not existing uses) that any of the uses that were so designated as potential uses are not attainable (as defined by 40 CFR 131.10(d)) in any of the waters covered by the tributary rule footnote. If the Regional Board wishes to remove any of the uses designated by means of the tributary rule from any waters covered by that rule, it must do so by means of a public process that fully complies with the requirements of 40 CFR 131.10. Upon completion of such a process, such waters and their amended designated uses must be identified in the Basin Plan."*fn7
Despite the EPA's action, the parties agree that under federal regulations, the disapproved 1995 Basin Plan revision remains in effect unless or until the EPA promulgates a more stringent water quality standard, and that the EPA has not done so. (40 C.F.R. § 131.21(c).)
In 1988, in order to implement Proposition 65, the State Board adopted Resolution No. 88-63, the "Sources of Drinking Water" policy. The policy provided that "All surface and ground waters of the State are considered to be suitable, or potentially suitable, for municipal or domestic water supply and should be so designated by the Regional Boards [with certain exceptions]." (Fn. omitted.) Among those exceptions were surface waters where "a. The water is in systems designed or modified to collect or treat municipal or industrial wastewaters, process waters, mining wastewaters, or storm water runoff, . . . ; or, [¶] b. The water is in systems designed or modified for the primary purpose of conveying or holding agricultural drainage waters. . . ."
The Regional Board incorporated Resolution 88-63 into the Basin Plan by adding the following provision: "Water Bodies within the basins that do not have beneficial uses designated in Table II-1 are assigned MUN designations in accordance with the provisions of State Water Resolution No. 88-63 which is, by reference, a part of this Basin Plan. These MUN designations in no way affect the presence or absence of other beneficial use designations in these water bodies. [¶] In making any exemptions to the beneficial use designation of MUN, the Regional Board will apply the exceptions listed in Resolution 88-63 ."*fn8
In 1989, the Office of Administrative Law (OAL) issued Determination No. 8, deciding that the provisions of Resolution No. 88-63 were " 'regulations' as defined in Government Code section 11342, subdivision (b)," (former § 11342, subd. (b), § 11342 repealed by Stats. 2000, ch. 1059, § 6.2, ch. 1060, § 7) and therefore were subject to the requirements of the California Administrative Procedure Act (Gov. Code, § 11340 et seq.) (APA), that they were not adopted pursuant to the APA's requirements, and that they therefore violated former Government Code section 11347.5, subdivision (a) (now Gov. Code, §11340.5). The Legislature subsequently amended the Government Code to provide a different process for OAL review of any plans, policies, guidelines or revisions adopted pursuant to the Porter-Cologne Act after June 1, 1992, and exempting them from the rulemaking provisions of the APA. (Gov. Code, § § 11352-11354.) These provisions also grandfathered in the plans, policies and ...