Bay-Delta Water Case Against EPA Advances

SAN FRANCISCO (CN) — A federal judge refused Tuesday to dismiss allegations that the Environmental Protection Agency shirked its duty to review temporary changes California made to its water-quality standards during the drought, an action that environmentalists say shrank the state’s salmon and steelhead fish populations.

U.S. District Judge Jon Tigar denied a motion by the EPA to dismiss the lawsuit filed against it last year by the Natural Resources Defense Council, the Bay Institute and Defenders of Wildlife. Tigar said their claims are not moot and that they plausibly alleged that the EPA was required under the Clean Water Act to review the changes to more than two dozen water quality standards to protect fish and wildlife in the Bay-Delta Estuary.

New or revised water quality standards must be approved by the EPA before they can take effect. The Bay-Delta standards have been in place since 1995.

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 during the state’s long drought. Revisions expire after 180 days, and the last revision was issued in April 2016.

The revisions for the 1,600-square-mile estuary, where the Sacramento and San Joaquin Rivers meet before entering the 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.

It also claimed the plaintiffs’ claims are moot because the revisions have expired.

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

They also warned that the state will likely issue additional temporary revisions to address the drought because Brown’s executive order is still in force, necessitating relief from the court.

Tigar agreed.

“The question is whether defendants have demonstrated as a matter of law that the TUCP orders [temporary urgency change petitions] do not revise California’s water quality standards. They have not,” Tigar wrote.

Tigar heaped criticism on the EPA for asking him, and other judges in similar litigation, to disregard its own Water Quality Standards Handbook, which defines what a new or revised standard is and which the plaintiffs say California’s temporary revisions satisfied. Tigar called the EPA request “not reasonable.”

The EPA argued that only an amendment to the Bay-Delta standards constitutes a revision — not what the handbook defines as one.

Noting California’s reliance upon temporary revisions to deal with the drought, the EPA’s history of refusing to review them, and the fact that the governor’s order remains active, Tigar also found that the state can be expected to issue more of them.

“Under this constellation of facts, plaintiffs and the court can reasonably expect that the challenged harms will recur,” Tigar wrote.

NRDC attorney Kate Poole said in an email that the organization is confident it will win its case.

“The key question in the case is whether the changes approved by the State Water Board over the last three years amount to revisions to water quality standards triggering EPA’s review,” she said. “Judge Tigar’s ruling on the motion to dismiss agreed with us that the analysis basically turns on the effect of those decisions – was water quality actually allowed to degrade below approved standards? Because that effect is not disputed, we believe we’re well positioned to prevail on summary judgment.”

The EPA is represented by Department of Justice attorney Martin McDermott in Washington. He could not be reached for comment late Tuesday evening.

 

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