Drought Over, California Water Case Dismissed

SAN FRANCISCO (CN) — A federal judge dismissed a lawsuit Thursday accusing the Environmental Protection Agency of failing to review temporary changes California made to its water-quality standards during the drought that devastated fish populations, a move environmentalists say could again endanger them in a future drought.

U.S. District Judge Jon Tigar granted the EPA's motion for summary judgment and dismissed the case as moot without leave to amend, finding three environmental groups lacked standing after Gov. Jerry Brown canceled an executive order suspending compliance with the standards, which abolished the state’s authority to make the revisions.

“The facts have now changed,” Tigar wrote in his order. “(S)tate agencies must again comply with water quality control plans.”

The Natural Resources Defense Council, the Bay Institute and Defenders of Wildlife sued the EPA in April 2016, claiming it was required by the Clean Water Act to review the changes the state made during the drought to more than two dozen water-quality standards to protect fish and wildlife in the Bay-Delta Estuary.

The changes began in 2014, when Brown issued an executive order waiving the requirement that state agencies comply with water quality standards during California’s protracted drought.

The revisions for the 1,600-square-mile estuary, where the Sacramento and San Joaquin Rivers meet before entering San Francisco Bay, included increasing water exports, reducing river flow and loosening restrictions on when gates to pumping facilities can open.

Tigar denied the EPA’s motion to dismiss the case in February, finding the state might issue additional temporary revisions because Brown’s executive order was still in force, and that the EPA had yet to review the revisions that had expired.

But Tigar changed course Thursday, noting the executive order had been rescinded and the EPA had reviewed the revisions since his earlier ruling.

The EPA concluded in May that the revisions did not constitute new standards. But the plaintiffs contended the EPA's determination was not thorough enough. They said unless the agency does a complete assessment now, a future drought would again see the governor issue an executive order suspending compliance with water quality standards and the state temporary revisions that degrade water quality.

However, Tigar found “no reasonable expectation that the challenged conduct will recur,” adding that the chance the governor will issue another order and the state will make more revisions in a future drought was too uncertain to grant relief.

“Plaintiffs have ‘no actual knowledge’ of how the Governor, SWRCB [State Water Resources Control Board], or EPA will respond in the event of renewed drought conditions,” he wrote. “The Court is ‘reluctan[t] to endorse standing theories that rest on speculation about the decisions of independent actors.”

The EPA claimed it was not required to review California’s revisions because they were temporary and did not actually change its water quality standards. It said it was required to review only actual changes to the standards.

The plaintiffs countered that though the revisions were temporary, they did change the standards. They said the changes degraded water quality in the estuary and resulted in “catastrophic” population declines in threatened Central Valley spring-run Chinook salmon and Central Valley steelhead.

The plaintiffs were represented by National Resources Defense Council attorney Kate Poole in San Francisco. Spokeswoman Shaine Meulmester said the group is disappointed with the decision and is reviewing its legal options.

The EPA was represented by Justice Department attorney Martin McDermott in Washington. The department declined to comment.

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