Waterkeepers v. Water Resources Control Bd.

• Decision Date: 24 October 2002
• Docket Number: No. A094917.,A094917.
• Court: California Court of Appeals Court of Appeals
• Parties: WATERKEEPERS NORTHERN CALIFORNIA et al., Plaintiffs and Appellants, v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Respondent, Regional Water Quality Control Boards For Regions 1 through 9, Real Parties in Interest and Respondents, Western States Petroleum Association et al., Interveners and Respondents.

126 Cal.Rptr.2d 389

102 Cal.App.4th 1448

WATERKEEPERS NORTHERN CALIFORNIA et al., Plaintiffs and Appellants, v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Respondent Regional Water Quality Control Boards For Regions 1 through 9, Real Parties in Interest and Respondents Western States Petroleum Association et al., Interveners and Respondents.

No. A094917.

Court of Appeal, First District, Division 1.

October 24, 2002.

Earthjustice Legal Defense Fund, Laura L. Hoehn, Michael R. Sherwood, Michael R. Lozeau, San Francisco, Lawyers for Clean Water, Daniel G. Cooper, Layne K. Friedrich, for Plaintiffs and Appellants.

Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Mary E. Hackenbracht, Assistant Attorney General, Clifford T. Lee and Gavin G. McCabe, Deputy Attorneys General, for Defendant and Respondent California State Water Resources Control Board and for Real Parties in Interest and Respondents

Regional Water Quality Control Boards for Regions 1 through 9.

Pillsbury Winthrop, Margaret Rosegay, Norman F. Carlin, San Francisco, for Intervener and Respondent Western States Petroleum Association.

Fulbright & Jaworski, Colin Lennard, Patricia J. Chen, Los Angeles, Roberta L. Larson, for Intervener and Respondent California Association of Sanitation Agencies.

SWAGER, J.

In this appeal, we review an aspect of a petition for writ of mandate and complaint for injunctive and declaratory relief brought by six environmental organizations (appellants)¹ against the State Water Resources Control Board (State Board), each of the nine Regional Water Quality Control Boards (Regional Boards) and two trade organizations² who intervened in the litigation on behalf of the State Board and Regional Boards. We affirm the judgment denying the petition and dismissing the complaint by adopting a narrow interpretation of the provision at issue.

PROCEDURAL BACKGROUND

The appellants' original petition and complaint raised a series of nine challenges to the Policy for Implementation of Toxics Standards for Inland Surface Waters, Enclosed Bays, and Estuaries of California (hereafter Toxics Standards Implementation Policy) adopted by the State Board on March 2, 2000. The trial court entered a judgment for the defendants denying all of appellants' claims and awarding costs to the defendants. In their opening brief in this appeal, appellants advanced assignments of error related to four separate elements of the Toxics Standards Implementation Policy.

While the appeal was pending, the United States Environmental Protection Agency (EPA) reviewed the request of the State Board for approval of the Toxics Standards Implementation Policy. In a letter dated May 1, 2001, the EPA addressed and generally approved three of the four provisions at issue in the appeal. Following the State Board's response to the letter, appellants filed a partial voluntary dismissal pursuant to a stipulation with the parties in which they abandoned the three assignments of error addressed in the EPA letter, leaving for our review the one remaining assignment of error relating to the "minimum level" provision in section 2.4.5, paragraph 1, of the Toxics Standards Implementation Policy.

DISCUSSION

A. General Statutory Background

The case arises from an administrative history reflecting the dual role of state agencies in implementing state law relating to water quality and carrying out a delegated administrative responsibility over the more precise and far-reaching system of federal law. The governing state law, the Porter-Cologne Water Quality Control Act (Porter-Cologne Act),³ enacted in 1969, assigns to the Regional Boards the responsibility of developing water quality control plans, or basin plans, which identify "beneficial uses of water" and set "water quality objectives." (Wat. Code §§ 13241-13242.) The State Board is charged with approving these regional water quality control plans (Wat.Code § 13245) and formulating "state policy for water quality" that conforms to the requirements of Water Code section 13142. The adoption of the state policy is a quasi-legislative, rule-making action subject to review by the Office of Administrative Law under the Administrative Procedure Act. (Gov.Code, §§ 11340, 11353 & 11370.)

The actual administration of the Porter-Cologne Act rests on the power of the Regional Boards to prescribe waste discharge requirements for all persons discharging waste into inland surface waters, enclosed bays and estuaries within their jurisdiction. (Wat.Code § 13263.) The waste discharge requirements implement state policy and water quality objectives formulated in basin plans. (Wat.Code §§ 13241, 13263, subd. (a).) All persons subject to waste discharge requirements must file discharge reports with the Regional Boards containing prescribed information. (Wat. Code § 13260; see also Wat.Code § 13267; Cal.Code Regs., tit. 23, § 2200 et seq.)

Through the enactment in 1972 of the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), commonly known as the Clean Water Act, Congress delegated to those states with approved water quality programs the authority to issue permits to discharge pollutants under the National Pollutant Discharge Elimination System (NPDES). In response, the California Legislature amended the Porter-Cologne Act to require the State Board and Regional Boards to issue discharge permits that ensure compliance with the Clean Water Act. (See Wat.Code § 13370 et seq.) The EPA subsequently gave the State Board and Regional Boards the required approval to issue NPDES permits. Hence, the waste discharge requirements issued by Regional Boards ordinarily also serve as NPDES permits under federal law. (Wat.Code § 13374.)

In general, the Clean Water Act prohibits the discharge of any pollutant except in compliance with one of several statutory exceptions. (33 U.S.C. § 1311(a).) The most important of these exceptions (which largely incorporates by reference the others) applies to discharges subject to an NPDES permit. (33 U.S.C. § 1342.) NPDES permits "generally have five components: technology-based limitations, water quality-based limitations, monitoring and reporting requirements, standard conditions, and special conditions." (ABA Section of Natural Resources, Energy, and Environmental Law, The Clean Water Act Handbook, (Evans edit., 1994) p. 14 (hereafter Clean Water Act Handbook).) Only the water quality-based limitations and monitoring and reporting requirements are at issue in this appeal.

NPDES permits require dischargers to monitor their discharges according to prescribed procedures and to report the results on discharge monitoring reports. (33 U.S.C. § 1318(a); 40 C.F.R. § 122.4(l)(4) (2002).) Monitoring is ordinarily conducted at the point of discharge, though monitoring of internal streams in a facility may occasionally be required. (40 C.F.R. § 122.45(h) (2002).)⁴ Discharge monitoring reports are admissible in court as admissions of the discharger and thus play a critical evidentiary role in enforcement actions for violation of permit terms.⁵

The Clean Water Act authorizes both a chemical-specific and a whole-effluent approach to regulation of toxic pollutants. The former relies on chemical analysis of discharge samples and the latter on tests of the toxicity of the entire discharge sample. (See Clean Water Act Handbook, supra, pp. 28-32.) Only the chemical-specific approach is at issue here. Three provisions in the Clean Water Act—sections 304, 307 and 303—are of particular importance in the chemical-specific regulation of toxic pollutants.

Section 304, subdivision (a) of the Clean Water Act directs the EPA to "develop and publish ... criteria for water quality accurately reflecting the latest scientific knowledge ... on the kind and extent of all identifiable effects on health and welfare ... which may be expected from the presence of pollutants in any body of water...."⁶ (33 U.S.C. § 1314(a)(1).) The publications relating to water quality criteria published under section 304 are scientific assessments that lack the force of regulatory law, but, as we will see, they form the basis for state regulation of toxic pollutants under section 303.

Section 307, subdivision (a)(1) of the Clean Water Act requires the EPA to compile a list of toxic pollutants that are to be subject to effluent limitations. (33 U.S.C. § 1317; 40 C.F.R. § 401.15 (2001).) The EPA has interpreted the list to include 126 priority pollutants. (40 C.F.R. § 423, appen. A (2001); see also id., § 131.36, Gen. Notes 1 (2002).)

The provision most central to this appeal, section 303, subdivision (c)(2)(B), was added to the Clean Water Act by the Water Quality Act of 1987. (Pub.L. No. 100-4, § 1 (Feb. 4, 1987) 101 Stat. 7.) It requires the states to adopt specific numerical criteria for all toxic pollutants listed pursuant to section 307, subdivision (a)(1), for which the EPA has published water quality criteria pursuant to section 304, subdivision (a), where the discharge of the pollutants could reasonably be expected to interfere with the uses of the affected waters as designated by the states. (33 U.S.C. § 1313(c)(2)(B).) Upon adoption by the states, the numerical criteria for toxic pollutants are reviewed by the EPA. If the EPA determines that the state standard is not consistent with the requirements of federal law, it must notify the states and specify "the changes to meet such requirements." (33 U.S.C. § 1313(c)(3).) In the default of appropriate state action, the EPA itself must promulgate regulations establishing the required numerical standard for toxic pollutants. (33 U.S.C. § 1313(c)(3) & (4).) The present appeal concerns two such regulations promulgated by the EPA in the absence of state action.

To comply with section 303, subdivision (c)(2)(B), California adopted an Enclosed Bays and Estuaries Plan and an Inland Surface Waters Plan. On November 6, 1991, the EPA approved both plans with...