SAN FRANCISCO (CN) — A federal judge Thursday refused the Environmental Protection Agency’s request to dismiss a claim that it failed to review changes California made to its water quality standards during its ongoing drought, but asked both sides for more information.
“I need some clarity as to what my role is,” U.S. District Judge Tigar said at a hearing on the EPA’s motion to dismiss a lawsuit from the Natural Resources Defense Council.
The NRDC, Bay.org and Defenders of Wildlife, accused the EPA in April 2016 of shirking its mandatory duty under the Clean Water Act to review temporary revisions California made to more than two dozen water quality standards in the Bay-Delta estuary to stave off its unrelenting drought.
The temporary revisions began in 2014 when Gov. Jerry Brown issued an executive order waiving the requirement that state agencies comply with water quality standards while the drought rages. Revisions expire after 180 days, and the last revision was issued in April.
The temporary 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.
The EPA contends it wasn’t required to review California’s revisions because they were temporary and didn’t actually change its water quality standards. It says it is required to review only actual changes to the standards.
The environmental groups say that though the revisions were temporary, they did change standards. They say revisions have degraded water quality in the estuary and resulted in “catastrophic” population declines in threatened Central Valley spring-run Chinook salmon and the Central Valley steelhead.
EPA attorney Martin McDermott told Tigar on Thursday that the EPA is not required to review temporary revisions, and that the environmentalists’ claim is moot because the revisions have expired.
“The water quality standards have not changed,” McDermott said. “When you open the book, they are still there.”
The EPA approved the water quality standards for the Bay-Delta estuary in 1995. And, McDermott said, California is revising its water quality standards today.
“I would submit that the court should stay its hand in the context where you actually have an administrative process that can shift [the case] dramatically,” he said.
Natural Resources Defense Council attorney Katherine Poole countered that the state’s actions have resulted in changes to its water quality standards that necessitate EPA review.
The NRDC said in its opposition to the request for summary judgment that the Clean Water Act does not allow a state to evade federal oversight of its water quality standards by choosing not to submit revisions to the EPA or by arguing that they’re not actually revisions.
“They have clearly taken Bay-Delta standards criteria and explicitly modified them, and that’s a clear change, and it clearly has the effect of changing water quality in the receiving water body, and that’s the key issue,” Poole said.
She added that the state will likely issue additional temporary revisions to its water quality standards because Brown’s 2014 executive order is still in force.
“We’re still in a drought, the conditions leading to these orders remain in place,” she said. “So the information before the court establishes that this is likely to recur.”
Poole is with the Natural Resources Defense Council in San Francisco. McDermott is a trial attorney with the Justice Department in Washington.
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