Environmental Groups Sue State Water Resources Control Board Over Listing Impaired Water Bodies Under the Clean Water Act
Published by: Somach Simmons & Dunn
November 8, 2017
In early November, two separate lawsuits were filed by coalitions of environmental groups, alleging that the State Water Resources Control Board (State Board) failed to determine that various water bodies are “impaired” for pollutants. The first, brought by the Earth Law Center, along with San Diego Coastkeeper and Los Angeles Waterkeeper, argues that the State Board violated the Clean Water Act by failing to determine that numerous waterways are “hydrologically impaired” due to man-made structures and alterations, including dams and surface water appropriations. The second lawsuit was brought by Pacific Coast Federation of Fishermen’s Associations, Institute for Fisheries Resources, North Coast Rivers Alliance, and San Francisco Crab Boat Owners Association (collectively, Fishermen), challenging the State Board’s decision not to list numerous sections of the Sacramento-San Joaquin River Delta as impaired for temperature and pesticides.
Both lawsuits are premised on the State Board’s approval of the combined 2014/2016 California Integrated Report (Integrated Report), pursuant to the federal Clean Water Act, sections 303(d) and 305(b). These sections require states to review the current quality of waters in conjunction with the established water quality standards for those waters and the designated beneficial use of the water. A beneficial use is a purpose for which the water can be used, such as domestic drinking water, fish and wildlife habitat, and irrigation. A water body is considered “impaired” when existing regulatory mechanisms do not achieve the level of water quality to support the water body’s designated beneficial use.
Earth Law Center’s petition for writ of mandate includes several allegations, including that numerous rivers in the San Diego area, in the central coast (including the Salinas and Santa Maria Rivers), and in southern California (including the Santa Clara and Santa Ana Rivers) should have been determined to be hydrologically impaired because human modifications and use of surface and ground waters reduce flows in the water bodies such that there are insufficient flows to support fish and wildlife beneficial uses. Earth Law Center alleges that the State Board, through its Regional Water Quality Control Boards, gathered sufficient evidence and data to demonstrate the impairments, yet it erroneously declined to so find. Other allegations related to timing of data submissions and approval of the 303(d) and 305(b) reports, as well as California Environmental Quality Act claims, are also included in the petition.
The Fishermen petition for writ of mandate and complaint alleges that the State Board failed to consider readily available information about water quality in the Delta that could have been sourced from monitoring stations associated with the State’s Bay-Delta Plan and with the California Department of Fish and Wildlife’s restoration efforts in the San Joaquin River. The Fishermen complaint then argues that, even with the data before the State Board, there was sufficient evidence to support impairment determinations for several water bodies in the Delta for high temperature as well as for pyrethroid pesticides. The Fishermen complaint argues that these water quality conditions contribute to the decline of salmon and other fish species in the Delta.
Both cases seek an invalidation of the State Board’s approval of the 2014/2016 Integrated Report, and a court order directing the State Board to review the Integrated Report and bring it into compliance with the Clean Water Act and associated state law.
For more information on these cases, please contact Brenda Bass at firstname.lastname@example.org, or Tess Dunham at email@example.com.
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