Agriculture Meets the Antidegradation Policy
July 2013
Recently, environmental plaintiffs have found California’s Antidegradation Policy to be a useful tool when appealing the requirements contained in Waste Discharge Requirements (“WDRs”) issued by the Central Valley Regional Water Quality Control Board (“Regional Board”). Over the past year, two significant water quality orders impacting thousands of growers and producers in the Central Valley were successfully challenged under the State’s Antidegradation Policy. The orders were sent back to the Regional Board for further analysis to consider the quality of the receiving waters, including groundwater, as part of the Regional Board’s antidegradation determination. Environmental plaintiffs anticipate that, by requiring additional analysis, the Regional Board may be compelled to impose more stringent discharge requirements upon California’s agricultural community. If the environmental plaintiffs are successful, the State’s Antidegradation Policy may quickly become a more frequent component in challenges to WDRs as a means to strengthen water quality regulations.
California’s Antidegradation Policy
In response to a federal directive from the Department of Interior, in 1968, California adopted the Statement of Policy with Respect to Maintaining High Quality Waters in California, a policy that is frequently referred to as the State’s “Antidegradation Policy.” (SWRCB Resolution No. 68-16) This policy requires that existing high quality waters be maintained to the maximum extent possible unless certain findings are made. These findings include demonstrating that any changes to the water are: (1) consistent with the maximum benefit to the people of the state; (2) will not unreasonably affect beneficial uses; and (3) will not violate water quality standards. Further, the Board must find that any discharge to high quality water will undergo the best practicable treatment or control (“BPTC”) of the discharge necessary to assure that no pollution or nuisance will occur, and the highest water quality consistent with the maximum benefit to the people of the state will be maintained. This analysis of whether a proposed activity will degrade high quality waters is to be completed prior to issuance of WDRs.
Antidegradation Policy used to Challenge Waste Discharge Requirements
In 2010, the Asociacion De Gente Unida Por El Agua (“AGUA”), a nonprofit organization whose goal is to secure effective groundwater protection for drinking water sources, challenged the Regional Board’s WDRs for existing milk cow dairies, Order No. R5-2007-0035 (“Dairy Order”), as inconsistent with the State’s Antidegradation Policy. The lower court sided with the Regional Board; however, in 2012, the Court of Appeal reversed the lower court’s decision and held that the Regional Board failed to determine whether discharges permitted under the Dairy Order would result in the degradation of high quality groundwater. (AGUA v. Central Valley Regional Water Quality Control Board (2012) 210 Cal.App.4th 1255.) Although the Dairy Order prohibited discharges of dairy waste that would further degrade groundwater, the court found that the Dairy Order’s monitoring program was insufficient to detect whether degradation was occurring and, therefore, the prohibitions could not be sufficiently enforced. (Id. at 1275, 1278.)
The court explained how to determine if receiving waters are high quality waters subject to protection under the Antidegradation Policy. The baseline water quality of the receiving waters, in this case the groundwater beneath the dairies, is established and then compared to the applicable water quality objectives, if any, for those receiving waters. “[I]f the baseline water quality is better than the water quality objectives, the baseline water quality must be maintained in the absence of findings required by the antidegradation policy.” (AGUA, supra 210 Cal.App.4th at p. 1270.) This determination is made on a constituent-by-constituent basis, meaning that water demonstrating a good baseline for a particular constituent (e.g., copper) may be high quality water for that specific constituent or related beneficial use, but not for another constituent such as salt. (Id. at 1272.) Therefore, before issuing WDRs, the Regional Board must first ascertain the quality of the receiving water for all relevant constituents, and then determine if the water is considered “high quality” for any of these constituents such that the Antidegradation Policy would be triggered.
The AGUA court concluded that at least some of the groundwater affected by the Order was high quality. As a result, the court held that the Regional Board was obligated to make the findings required by the Antidegradation Policy before it could adopt the order. The holding in AGUA created a framework by which to judge antidegradation analyses and, before long, this framework was used to challenge another order adopted by the Regional Board.
In 2012, California Sportfishing Protection Alliance (“CSPA”), a nonprofit organization whose stated goal is to conserve, restore, and enhance the state’s water quality, wildlife and fishery resources, challenged the Regional Board’s renewal of a conditional waiver of WDRs for discharges from irrigated lands, Order No. R5-2011-0032 (“Renewed Waiver”). CSPA challenged the Renewed Waiver on several grounds, one of which was for failure to comply with the State’s Antidegradation Policy. CSPA claimed that in renewing the order, which generally requires growers that are part of a coalition group to implement an extensive monitoring and reporting program and to report and manage any exceedances of water quality standards, the Regional Board failed to demonstrate that discharges under the Renewed Waiver would not further degrade groundwater.
Sacramento Superior Court Judge Frawley, in a May 21, 2013 ruling, agreed with CSPA, and found that the Regional Board failed to conduct the antidegradation analysis established in AGUA. (California Sportfishing Protection Alliance, et al. v. California Regional Water Quality Control Board, Central Valley Region, et al. (Super. Ct. Sacramento County, May 21, 2013, No. 2013 34-2012-80001186) (Consolidated Case No. RG12632180).) The Regional Board had not adequately determined whether discharges to surface water would degrade high quality groundwater, nor did the Regional Board determine whether the Renewed Waiver is “consistent with any applicable basin plan and is in the public interest.” (Id. at 20.) The antidegradation analysis was therefore deemed insufficient for failure to account for the groundwater as receiving water. “[T]he Renewed Waiver does not regulate or monitor groundwater quality … for this reason alone, the Renewed Waiver is not consistent with the Antidegradation Policy.” (Id. at 19.) Given the ruling, the Regional Board must now amend its antidegradation analysis incorporating the groundwater as receiving waters in order to comply with the policy.
Conclusion and Implications
The opinion in AGUA identified a framework that Regional Water Quality Control Boards can follow in order to have more certainty that their antidegradation analysis will withstand judicial review. The AGUA court sent the Dairy Order back to the Regional Board requiring a baseline analysis of the groundwater under the dairies, and adoption of the necessary findings, presumably based on concrete evidence, required by the Antidegradation Policy.
CSPA’s success in using the AGUA framework to defeat the Renewed Waiver is significant by revealing a subsequent court’s willingness to apply the AGUA framework to other Regional Board orders. The later court was willing to apply the AGUA framework to an order regulating irrigation discharges despite the practical difficulties with generating receiving water data for groundwater under more than five million acres of irrigated land enrolled under the Renewed Waiver. CSPA’s success in challenging the Renewed Waiver will likely mean that more Regional Board orders statewide will be scrutinized, or even litigated under the AGUA ruling, to ensure compliance with the State’s Antidegradation Policy.
Melissa Thorme is a Partner in the Environmental Law, and Food & Agriculture Practices. Melissa’s practice focuses in the areas of water quality, wastewater, agricultural runoff, permitting, enforcement defense and agricultural law. © 2013 Downey Brand, LLP.
The information in this article is not intended to provide specific legal advice. You should consult with an attorney and not rely on any information contained herein regarding your specific situation.