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Conway v. State Water Resources Control Board

California Court of Appeals, Second District, Sixth Division

March 30, 2015

CHARLES CONWAY, JR., et al., Plaintiffs and Appellants
v.
STATE WATER RESOURCES CONTROL BOARD et al., Defendants and Respondents.

Superior Court County of Ventura Super. Ct. No. 56-2011- 399391-CU-WM-VTA Frederick H. Bysshe, Jr., Judge

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COUNSEL

Hinson Gravelle & Adair, Douglas A. Gravelle, Law Offices of Charles J. Conway, Jr., and Charles J. Conway, Jr., for Plaintiffs and Appellants.

Kamala D. Harris, Attorney General, Robert W. Byrne, Assistant Attorney General, Gary E. Tavetian and Eric M. Katz, Deputy Attorneys General, for Defendants and Respondents.

OPINION

GILBERT, P. J.

McGrath Lake is polluted. The Los Angeles Regional Water Quality Control Board has established the total maximum daily load (TMDL) of pollutants allowed in the lake. Owners of private property within which a portion of the lake is located will likely be held responsible for remediation of the pollution. They contend the TMDL may not be stated in terms of concentration of pollutants in lake bed sediment. The trial court denied their petition for a writ of mandate. The lake is its water and its sediment. We affirm.

FACTS

BACKGROUND

McGrath Lake, situated at the southern end of McGrath State Beach Park, has about 12 acres of surface area. It is located in the McGrath Lake subwatershed. The subwatershed is approximately 1, 200 acres consisting primarily of agricultural fields, petroleum facilities, park land, public roads and a closed landfill. The primary activity in the subwatershed is agriculture.

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McGrath Lake receives runoff from the agricultural lands. Much of the runoff reaches the lake by a ditch known as the Central Ditch. The lake is a terminal lake; that is, it has no natural outlet. McGrath Lake including its lake bed sediment is polluted with pesticides and polychlorinated byphenyls (PCBs). The federal Water Pollution Control Act, also known as the Clean Water Act (33 U.S.C. § 1251 et seq.), requires all states to identify polluted water bodies within their jurisdictions. (Id., § 1313(d).) For all such water bodies the state must set "total maximum daily load[s]." (Ibid.) A TMDL is the maximum amount of pollutants (or load) that a water body can receive from point and nonpoint sources. (40 C.F.R. § 130.2(i) (2014).) A point source is a discrete discharge source such as the Central Ditch; a nonpoint source is any other type of source. (See Tahoe-Sierra Preservation Council v. State Water Resources Control Bd. (1989) 210 Cal.App.3d 1421, 1425, fn. 2 [259 Cal.Rptr. 132].)

California implements the Clean Water Act through the Porter-Cologne Water Quality Control Act (Wat. Code, § 13000 et seq.) Under the Porter-Cologne Water Quality Control Act, the State Water Resources Control Board (State Board) is charged with implementing the federal act including the development of TMDLs. (Water Code, §§ 13160; 13191.3, subd. (a).) Regional Water Quality Control Boards (Regional Board) regulate the quality of water within their regions under the purview of the State Board. (See City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392 1405 [38 Cal.Rptr.3d 373].) Regional Boards adopt water quality control plans, commonly called "basin plans." (Ibid.) A Regional board may establish TMDLs by amendment to the basin plan. (Id. at p. 1406.)

Basin Plan Amendment

The Regional Board's Basin Plan Amendment established TMDLs for McGrath Lake for two sources of pollution. One source is pollutants coming into the lake from the Central Ditch. The ...


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