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Asociacion De Gente Unida Por El Agua et al v. Central Valley Regional Water Quality Control Board

November 6, 2012

ASOCIACION DE GENTE UNIDA POR EL AGUA ET AL., PLAINTIFFS AND APPELLANTS,
v.
CENTRAL VALLEY REGIONAL WATER QUALITY CONTROL BOARD, DEFENDANT AND RESPONDENT; COMMUNITY ALLIANCE FOR RESPONSIBLE ENVIRONMENTAL STEWARDSHIP, INTERVENOR AND RESPONDENT.



(Super. Ct. No. 34-2008-00003604CU-WM-GDS) APPEAL from a judgment of the Superior Court of Sacramento County, Patrick Marlette, Judge.

The opinion of the court was delivered by: Blease , Acting P. J.

CERTIFIED FOR PUBLICATION

Reversed with directions.

In 2007, after decades of allowing most dairies to operate without any waste discharge requirements, defendant Central Valley Regional Water Quality Control Board (Regional Board) issued a general waste discharge order (Order)*fn1 for the purpose of regulating the waste from existing milk cow dairies. The Order purports to prohibit the further degradation of groundwater, as is required by the state's antidegradation policy. However, the Order does not prohibit the discharge of waste to groundwater. Assuming that some dairy waste will reach the groundwater, the Order relies on groundwater monitoring to insure that the groundwater is not further degraded. We shall conclude that the uncontradicted evidence in the record before the Regional Board indicated that the Order's monitoring system of taking samples from domestic and agricultural supply wells is insufficient to detect groundwater degradation in a timely manner. Additionally, the Order contains no remediation measures in the event groundwater monitoring determines degradation has occurred.

It is the policy of the state (the antidegradation policy)*fn2 to regulate the disposal of wastes into the waters of the state so as to achieve the "highest water quality consistent with maximum benefit to the people of the State . . . ." To this end, existing high quality water must be maintained unless any change will be consistent with the maximum benefit to the people of the state, will not unreasonably affect the beneficial use, and will not result in water quality that is below that prescribed by water policies. High quality water is the best water quality achieved since the adoption of the antidegradation policy by the State Water Resources Control Board (State Board) in 1968. The State Board's authority to adopt the policy was confirmed in 1969 in the Porter-Cologne Water Quality Control Act (Water Quality Act), which continued the provisions of prior law, granting the State Water Pollution Control Board authority to enact state policy for water quality control. The Water Quality Act also continued the authority of the nine regional water quality control boards (formerly the Regional Water Pollution Control Boards) to implement the policy. (Wat. Code, § 13020; Stats 1949, c. 1549, § 1 p. 2785.)*fn3

One of the regional water quality control boards is the defendant Regional Board. In 2007 it issued the Order, which applies to the discharge of waste from existing milk cow dairies. The Order prohibits the collection, treatment, storage, discharge or disposal of waste that could cause further degradation of groundwater, except as allowed by the Order. Some 1,600 dairies are subject to the Order, involving herd sizes ranging from 30 to 10,000 mature dairy cows. A single dairy cow produces approximately 120 pounds of manure and 36 pounds of urine daily. As a result the smallest dairies produce thousands of pounds of manure every day and the largest produce more than one million pounds daily.

Appellants Asociacion de Gente Unida por el Agua and Environmental Law Foundation challenge the Order by writ of mandate as violating the antidegradation policy because the Order does not require the best practicable method for regulating the discharge of waste.*fn4

The Order purports to prohibit the further degradation of groundwater, but does not prohibit the discharge of waste into the groundwater. Adverse impacts to groundwater due to discharges from existing cow dairies have been detected in areas where groundwater is relatively deep below ground surface and in areas that provide natural filtration. The principal means of storing the discharge of waste from a dairy's milk parlors and corral areas is the collection and retention of waste and wastewater in holding ponds.

The Order imposes stringent requirements for new and reconstructed ponds, but does not require that existing ponds meet these requirements unless groundwater monitoring demonstrates that a pond has adversely impacted groundwater quality. The Order recognizes that groundwater monitoring is the most direct way to determine whether groundwater degradation is occurring. However, the Order does not require the construction of groundwater monitoring wells unless a "domestic" or "agricultural" supply well shows an adverse impact. The evidence shows that monitoring from a supply well is ineffective to accomplish the timely detection of a change in groundwater quality.

Where, as here, the Regional Board is permitting an activity that may produce waste that will discharge into existing high quality waters, it may permit such activity only if it makes certain findings. The Regional Board must find that the activity (1) is consistent with the maximum benefit to the people of the state, (2) will not unreasonably affect beneficial uses, and (3) will not violate water quality standards. It must also find that any discharge to high quality water will be required to undergo the best practicable treatment or control of the discharge necessary to assure that no pollution or nuisance will occur, and the highest water quality consistent with the maximum benefit to the people of the state will be maintained.

The Regional Board has failed to make any such findings. Rather, it argues that the antidegradation policy is inapplicable because the Order states that it "does not authorize any further degradation to groundwater[.]" We disagree.

The wish is not father to the action. The Order finds that the beneficial domestic, agricultural, and other uses of the groundwater underlying the dairies will be protected by the Order, but the finding wholly depends upon the Order's prohibition of the further degrading of groundwater without requiring the means (monitoring wells) by which that could be determined. Because the monitoring plan upon which the Order relies to enforce its no degradation directive is inadequate, there is not substantial evidence to support the findings.

The trial court denied writ relief under the judicial review provisions of the Water Code (§ 13330, subd. (e)) on the ground, inter alia, that the antidegradation policy was not applicable because the Regional Board's action did not involve high quality waters. It reasoned that the quality of the groundwater underlying many, if not most, of the dairies had already degraded to a significant degree since 1968, when the antidegradation policy was adopted. The trial court's reading would make the state's antidegradation policy inapplicable and thus ineffective whenever a proposal is made to discharge waste or pollutants into water that has been degraded since 1968, no matter how good the quality is of such receiving water.

The trial court has applied the wrong measure of high quality water. High quality water, as defined by the State Board, is "waters with existing background quality unaffected by the discharge of waste and of better quality than that necessary to protect beneficial uses." So defined, the antidegradation policy applies to the Regional Board's Order because the groundwater in the Central Valley is of high quality, and because the Order allows activities that will result in a release of waste into the groundwater.

We shall reverse the trial court's denial of the writ of mandate. We conclude that the antidegradation policy applies and that the relevant findings are insufficient to comply with the policy.

FACTUAL AND PROCEDURAL BACKGROUND

A. Statutory and Regulatory Framework

1. The Antidegradation Policy

The State Board adopted the antidegradation policy, Resolution No. 68-16, on October 28, 1968, in response to a directive from the United States Department of the Interior that called for the adoption of state antidegradation policies. The policy applies to both groundwater and surface water although the U.S. Environmental Protection Agency's (USEPA) antidegradation policy applies only to surface water.

Resolution No. 68-16 states that it is the policy of the state to regulate, inter alia, the granting of permits and licenses for the disposal of wastes into the waters of the state so as to achieve the "highest water quality consistent with maximum benefit to the people of the State" and "so as to promote the peace, health, safety and welfare of the people of the State[.]" The resolution states that where the quality of water is higher than that established by adopted policies, the higher quality must be maintained "to the maximum extent possible consistent with the declaration of the Legislature[.]"

For purposes of this case, there are two important operative clauses in the resolution.

First: "Whenever the existing quality of water is better than the quality established in policies as of the date on which such policies become effective, such existing high quality will be maintained until it has been demonstrated to the State that any change will be consistent with maximum benefit to the people of the State, will not unreasonably affect present and anticipated beneficial use of such water and will not result in water quality less than that prescribed in the policies."

Second: "Any activity which produces or may produce a waste or increased volume or concentration of waste and which discharges or proposes to discharge to existing high quality waters will be required to meet waste discharge requirements which will result in the best practicable treatment or control of the discharge necessary to assure that (a) a pollution or nuisance will not occur and (b) the highest water quality consistent with maximum benefit to the people of the State will be maintained."

2. State Board Regulations

The State Board has promulgated regulations establishing "statewide minimum standards for discharges of animal waste at confined animal facilities." (Cal. Code. Regs., tit. 27, § 22560, subd. (a).) The regional water quality control boards are directed to "impose additional requirements, if such additional requirements are necessary to prevent degradation of water quality or impairment of beneficial uses of waters of the state." (Cal. Code. Regs., tit. 27, § 22560, subd. (c).)

3. Porter-Cologne Water Quality Control Act

The Legislature enacted the Water Quality Act in 1969. (§ 13020.) It provides that the State Board and the regional water quality control boards are the "principal state agencies with primary responsibility for the coordination and control of water quality." (§ 13001.) It vests the State Board with authority to formulate and adopt state policy for water quality control. (§ 13140.) It continues provisions of the prior law, which created nine regional agencies. (Stats 1949, ch. 1549, § 1, p. 2785.)

The Regional Board is one of nine regional water quality control boards in the state. (§ 13200.) The Water Quality Act requires each regional water quality control board to adopt water quality control plans (referred to as basin plans) for the areas within its region, which must conform to the policies set forth by the Legislature and the State Board.*fn5 (§ 13240.) As part of a basin plan, the Regional Board must establish water quality objectives that assure the reasonable protection of beneficial uses and the prevention of nuisance. (§ 13241.) Water quality objectives are the limits or levels of constituents allowed in the water to protect the quality of the water. (§ 13050, subd. (h).) Basin plans are not effective until approved by the State Board. (§ 13245.)

Any person discharging or proposing to discharge waste (other than into a community sewer system) that could affect water quality is required to file a report with the appropriate regional water quality control board. (§ 13260, subd. (a)(1).) The board implements its basin plan through requirements for any proposed discharge, existing discharge, or material change in an existing discharge. (§ 13263, subd. (a).) It may do this even if no discharge report has been filed. (§ 13263, subd. (d).) A regional water quality control board may also prescribe general waste discharge requirements for a category of discharges. (§ 13263, subd. (i).)

In prescribing waste discharge requirements, a regional water quality control board must take into consideration the beneficial uses to be protected, the water quality objectives reasonably required for that purpose, other waste discharges, the need to prevent nuisance, past present, and probable future beneficial uses, environmental characteristics, water quality conditions that could reasonably be achieved through the coordinated control of all factors which affect water quality in the area, economic considerations, the need for developing housing, and the need to develop and use recycled water. (§§ 13263, subd. (a), 13241.) Since a waste discharge requirement implements a basin plan, it must conform to the state policy for water quality control, which includes the state antidegradation policy. (§§ 13140, 13240.)

With this framework in mind, we turn to the facts.

B. Order No. R5-2007-0035

Since 1982 most dairies under the authority of the Regional Board operated under a waiver program that allowed them to operate without waste discharge requirements if they were in compliance with title 27 of the California Code of Regulations (Title 27).*fn6 The expiration of the waiver program and the promulgation of new regulations for concentrated animal feeding operations by the USEPA prompted the Regional Board to draft new waste discharge requirements.

In 2007, the Regional Board enacted the Order. It took into consideration: (1) the comments received on drafts of the Order, (2) the historical compliance of dairies with the state and federal regulations, (3) the requirements of the California Water Code, (4) the requirements of the basin plans, and (5) Title 27. The Regional Board approved the Order in May 2007.

The Order applies to existing milk cow dairies that submitted a report of waste discharge and have not been expanded since October 2005. Other dischargers are covered under separate requirements. Approximately 1,600 dairies are subject to the Order, with herd sizes ranging from 30 to 10,000 mature dairy cows. A dairy cow produces approximately 120 pounds of manure and 36 1/2 pounds of urine daily. This means that even the smallest dairies produce thousands of pounds of manure every day, and the largest produce more than one million pounds daily.

The Order states that it "implements" the requirements of Resolution No. 68-16, and "does not authorize any further degradation to groundwater[.]" The Order addresses future discharges of waste, but does not address the cleanup of existing degraded groundwater from past dairy operations. Any such cleanup would be handled under separate authority of the Water Code.

With respect to Resolution No. 68-16, the Order finds that it: "does not authorize degradation of waters of the State. It requires actions to be taken to assure that degradation does not occur, that water quality objectives are not exceeded, and that nuisance does not occur." The Order contains a finding that it "requires use of best practicable treatment or control, specifically that new ponds or reconstructed existing ponds be designed and constructed to comply with the groundwater limitations in the Order."

The Order prohibits the collection, treatment, storage, discharge, or disposal of waste that results in the discharge of waste constituents in a manner which could cause degradation of groundwater "except as allowed by this Order[.]" The Order provides the following groundwater limitations:

"Discharge of waste at existing milk cow dairies shall not cause the underlying groundwater to be further degraded, to exceed water quality objectives, unreasonably affect beneficial uses, or cause a condition of pollution or nuisance. The appropriate water quality objectives are summarized in the Information Sheet, which is attached to and part of this Order, and can be found in the Central Valley Water Board's Water Quality Control Plan for the Sacramento and San Joaquin River Basins (4th Ed.) and the Water Quality Control Plan for the Tulare Lake Basin (2nd Ed.)."

The Order addresses groundwater protection in three ways. First, it addresses ponds. The Order requires dairies to provide an engineering evaluation for any existing waste pond, and to propose and implement remedial measures if groundwater monitoring demonstrates that the pond has adversely impacted groundwater quality. The designs for newly installed or reconstructed ponds must be approved by the Executive Officer of the Regional Board prior to installation or construction.

Second, the Order addresses drainage. Precipitation must be diverted away from manured areas, unless fully contained. Milk parlors, animal confinement areas, and manure and feed storage areas must be designed and maintained to convey all water to the waste retention system and to minimize infiltration of water into the underlying soil.

Third, the Order addresses the land application of waste. Such application must be conducted in accordance with a certified nutrient management plan, which must be modified within 90 days if monitoring shows that discharge from the land application fails to comply with the groundwater limitations of the Order. The Order states that the application of wastes to the land "shall not cause the underlying groundwater to contain any waste constituent, degradation product, or any constituent of soil mobilized by the interactions between applied wastes and soil or soil biota, to exceed the groundwater limitations set forth in this Order."

In addition to the nutrient management plan, the Order requires dairies to follow a waste management plan and a monitoring program. We discuss the monitoring program in more detail later in our opinion. The waste management plan requires that each dairy provide an engineering report demonstrating that the facility has adequate waste containment capacity and flood protection, and a report assessing the design and construction of the confinement, housing, and manure and feed storage areas. It also requires an operation and maintenance plan.

Following the Regional Board's approval of the Order, appellants filed a petition for review with the State Board pursuant to section 13320 and California Code of Regulations, title 23, section 2050.

The State Board dismissed the petition, concluding pursuant to section 2052, subdivision (a)(1), of title 23 of the California Code of Regulations that the petition failed to raise substantial issues appropriate for review.

C. Judicial Review

Appellants filed a petition for writ of mandate in the trial court. They argued that the Order violated Resolution No. 68-16 because it failed to require the best practical treatment or control of the discharge, and that the Regional Board's finding that the Order required the best practical treatment or control and would not result in groundwater degradation was not supported by the administrative record. Appellants also argued that the Order set an inappropriate baseline water quality in establishing its compliance with the California Environmental Quality Act (CEQA).

The trial court denied the petition for writ of mandate. It found that appellants did not demonstrate that the Order involved high quality waters or that the Order would cause the quality of such water to decline. Alternatively, the trial court found that the Regional Board "complied with the spirit of the anti-degradation policy" when it engaged in a process of weighing the various interests involved and finding that some minor continued degradation of groundwater was consistent with the maximum benefit to the people of the state.

DISCUSSION

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