Lawsuit Seeks to have California Waterways Identified as Hydrologically Impaired under the Clean Water Act

December 20, 2017

California Water Law & Policy Reporter

On November 1, 2017 the Earth Law Center, San Diego Coastkeeper and Los Angeles Waterkeeper (Petitioners) filed a Verified Petition for Writ of Mandate seeking to compel the State Water Resources Control State Board (Board) to identify the Salinas River, Carmel River, San Clemente River, Big Sur River, Santa Maria River, Santa Clara River, all Central Valley waters including the Delta, Napa, and portions of the Santa Ana River (the “Waterways”) as hydrologically impaired under the Clean Water Act.

Petitioners want the Board to consider the impacts from “hydromodificiation” as pollution, including “large-scale water projects,” recreational dams, diversion dams, groundwater pumping, delta pumping, and pumping of underflow that results in the dewatering of rivers and insufficient flow for beneficial uses related to wildlife habitat and development.  Petitioners’ allegations are focused on actions that reduce flow in the Waterways.

In response to comments at the administrative level, the Board asserted impairment that results solely from “pollution”—as opposed to a specific pollutant—is beyond the scope of the Clean Water Act reporting requirements. (See 40 C.F.R. § 130.2 [defining “pollution” as “[t]he man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water”].) According to the Board, in fulfilling its reporting obligations under Sections 303(d) and 305(b), there is no express requirement to consider flow, pollution, or allocation of water rights.  In the Board’s view, it satisfied its obligations by submitting the 2014/2016 Integrated Report to U.S. EPA.

The Board also noted that flow is variable in nature, and determining if a waterbody is impacted due to flow alterations would require a thorough analysis of historical flow and human-related impacts to defined and expected flow. If flow is impacted it would then need to be determined at what level the beneficial uses are impaired beyond that which would naturally be expected to occur in times of severe drought or storm. According to the Board, this is a complex analysis and requires a consistent and transparent methodology, which has not been developed.

Ultimately, a court determination regarding the scope of the Board’s obligations under the Clean Water Act will have serious implications for waterways and water rights throughout California.