LOS ANGELES (CN) — The California State Water Resources Control Board can't be forced to evaluate the "reasonableness" of locally issued permits to discharge treated wastewater, a state appeals court ruled, because state law doesn't impose this obligation on the agency.
The Los Angeles-based Second Appellate District on Monday overturned a trial judge's order for the agency to evaluate the reasonableness of the permits that were renewed in 2017 by its regional board in LA, allowing four treatment plants to discharge millions of gallons of treated wastewater in the LA River and the Pacific Ocean every day.
LA Waterkeeper, an environmental watchdog, had challenged the permits arguing the regional board and the state board should have considered better uses of the water, such as recycling, rather than dumping it in the ocean.
A lower court rejected that challenge as far as the regional board that had renewed the permits was concerned, finding that the local board was solely tasked with ensuring that the water was sufficiently free of pollution and that it lacked the authority to force the publicly owned treatment plants to recycle more wastewater or reduce the quantity of their discharges.
The judge, on the other hand, concluded the state board, in so far as it was responsible for the comprehensive planning and allocation of water in California, had a constitutional and statutory duty to prevent the waste of water. As such, the state board was ordered to evaluate whether the discharges from each of the four treatment works were reasonable.
But in the unanimous appellate decision, Associate Justice Helen Bendix wrote that even if the state board has a duty to prevent the unreasonable use of water, that duty is highly discretionary and state law doesn't require it to take action against any particular instance of unreasonable use or category of unreasonable use.
"The trial court correctly noted mandamus will not lie to compel an agency to exercise its discretion in a particular way, but then ran afoul of that principle by ordering the state board to investigate particular instances of unreasonable use identified by Waterkeeper," Bendix wrote for the panel. "Although the court justified this by finding the enormity of the [publicly owned treatment works] discharges was 'unique,' that is not a workable legal standard, nor one supported by the language of the Constitution or the water code."
In a statement, LA Waterkeeper’s executive director Bruce Reznik said the group disagrees with the ruling.
“LA Waterkeeper is disappointed with the appellate court’s ruling, which will exacerbate water insecurity in Los Angeles and throughout Southern California. With this decision, the court renders the California Constitution's prohibition on waste or unreasonable use of water meaningless — at least as to state government. In the midst of drought and unprecedented water insecurity, this authorization to do nothing is unacceptable. Given the far-ranging potential impacts of this ruling, we are exploring all of our options, including a possible appeal to the California Supreme Court,” Reznik said.
The Hyperion Water Reclamation Plant is by far the largest of the four plants whose renewed permits were challenged by the environmental organization. The plant, which sits on the ocean just west of Los Angeles International Airport, releases about 230 million gallons of treated wastewater a day, and recycles about 37 million gallons a day.
According to LA Waterkeeper's challenge to the permits, the water that is discharged is typically used only once by water consumers even though it's transported to LA at an enormous environmental and economic cost.
Given the scarcity of water resources in LA and throughout Southern California, LA Waterkeeper argued, additional increases to local water supply through recycling would bolster local water security and decrease the region's dependency on expensive and energy-intensive water imports.
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