Court Nixes Challenge to Water Pollution Limits

     SAN FRANCISCO (CN) – A city and a coalition of sanitation agencies failed to convince a California appeals court that the state water board improperly heightened pollution restrictions under the Clean Water Act.
     The California Association of Sanitation Agencies (CASA) and the City of Vacaville claimed the California Regional Water Quality Control Board for the Central Valley Region and the State Water Resources Control Board imposed restrictions that were stricter than necessary.
     Specifically, they challenged the objectives of a 1995 water quality plan, known as a “basin plan,” which capped the concentrations of certain chemicals and pesticides in potential public water sources.     
     In 2001, the regional board placed more stringent requirements on Vacaville’s sewer treatment plant releases into Old Alamo Creek at the boundary of the Sacramento-San Joaquin River Delta.
     Though Old Alamo Creek is not used for drinking water, the 2001 decision identified downstream waters as potential sources, set limits for discharges and applied a “non-detectable limitation” to at least one pesticide.
     Vacaville asked the state board to review the stricter permit, and the state board concluded that the regional board had correctly interpreted a 1995 basin plan assigning beneficial uses to tributary streams, including Old Alamo Creek.
     Vacaville and CASA then challenged the state board’s ruling in Contra Costa County Superior Court. The judge there upheld the boards’ decision to protect the creek as a potential source of drinking water, and California’s Court of Appeal for the First Appellate District affirmed.
     “We recognize that a MUN [municipal or domestic supply] or COLD [freshwater fish habitat] beneficial use may not be appropriate for at least some of the streams covered by the tributary rule, including Old Alamo Creek,” Justice Maria Rivera wrote for the three-judge panel. “But if the boards were to rescind their orders adopting or amending the Basin Plan insofar as they designated COLD or MUN uses for tributaries, the vast majority of the region’s approximately 10,000 water bodies would lack designated beneficial uses, and the state would be left in violation of its obligation under the Clean Water Act to adopt water quality standards.
     “Until the regional board has investigated each individual stream, the tributary rule is a reasonable means of protecting the beneficial uses of the waters of the region,” Rivera added.
     Changing the beneficial use designation requires an amendment to the basin plan, the court ruled.
     However, the justices said the regional board is equally obligated to determine the “factual accuracy” of its revised use designation for the creek.
     “As articulated by the state board in its order, ‘[a]t a minimum, where a regional board has evidence that a use neither exists nor likely can be feasibly attained, the regional board must expeditiously initiate appropriate basin plan amendments to consider de-designating the use.’ If the board unreasonably fails or refuses to do so, mandamus will lie,” Rivera wrote.
     “In sum, we reject the municipalities’ challenge to the use designations of the water bodies at issue here. Where, however, there is evidence that the beneficial use designated is not feasibly attainable, it is the agency’s obligation to undertake the actions necessary to ascertain and designate the appropriate beneficial uses,” Rivera concluded, leaving Vacaville room to “seek further amendments to the basin plan or initiate further proceedings.”

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