Monterey Coastkeeper v. State Water Resources Control Board ( 2018 )

Filed 9/18/18; Certified for Publication 10/17/18 (order attached)
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
MONTEREY COASTKEEPER et al., C080530
Plaintiffs and Respondents, (Super. Ct. No. 34-2012-
80001324-CU-WM-GDS)
v.
STATE WATER RESOURCES CONTROL
BOARD,
Defendant and Appellant;
GROWER-SHIPPER ASSOCIATION OF
CALIFORNIA et al.,
Interveners and Appellants.
1
The Central Coast Region is one of the great agricultural regions of California.
Unfortunately, waste discharges from irrigated agricultural operations, particularly from
the use of fertilizers and pesticides, have impaired the quality of both surface water and
groundwater in the region. The State Water Resources Control Board (State Board) and
nine regional boards are responsible for regulating waste discharges to protect water
quality. (Wat. Code, § 13263.) 1 Discharge requirements may be waived “if the state
board or a regional board determines . . . that the waiver is consistent with any applicable
state or regional water quality control plan and is in the public interest.” (§ 13269, subd.
(a).)
This case involves a challenge to a section 13269 waiver of waste discharge
requirements for irrigated agricultural land.
In 2012, the Central Coast Regional Water Quality Control Board (Regional
Board) issued a waiver of discharge requirements for irrigated agricultural operations in
the region. We refer to this as the 2012 waiver. After review, the State Board modified
the waiver. We refer to the State Board’s modification as the modified waiver, which is
the document at issue here.
Monterey Coastkeeper, 2 San Luis Obispo Coastkeeper, California Sportfishing
Protection Alliance, and Santa Barbara Channelkeeper (collectively Coastkeeper)
petitioned for a writ of mandate, challenging the modified waiver. They contended it did
not meet the requirements of the Water Code and applicable state water policies. The
trial court agreed in part, and issued a peremptory writ of mandate directing the State
Board to set aside the modified waiver and issue a new waiver consistent with its
decision.
1 Further undesignated statutory references are to the Water Code.
2 An entity self-described as “a program of The Otter Project, a non-profit organization.”
2
The State Board and various agricultural interests as interveners appeal. They
contend generally that the trial court erred in comparing the modified waiver
(unfavorably) to a 2010 draft of the 2012 waiver, failing to defer to the State Board’s
expertise and apply a presumption of correctness, and ignoring the appropriate
reasonableness standard. They raise specific objections to several of the trial court’s
findings.
As we explain, we agree with appellants as to two of their points; the trial court’s
findings as to the inadequacy of the tiering and monitoring provisions of the modified
waiver are not supported by substantial evidence. We modify the judgment accordingly
and otherwise affirm.
LEGAL BACKGROUND
The Porter-Cologne-Act
The Porter-Cologne Water Quality Control Act (Porter-Cologne Act) (§§ 13000 et
seq.) governs water quality regulation in California. It establishes the policy that
“activities and factors which may affect the quality of the waters of the state shall be
regulated to attain the highest water quality which is reasonable, considering all demands
being made and to be made on those waters and the total values involved, beneficial and
detrimental, economic and social, tangible and intangible.” (§ 13000.)
The State Board and regional boards are charged with “primary responsibility for
the coordination and control of water quality.” (§ 13001.) The State Board formulates
and adopts state policy for water quality control. (§ 13140.) The regional boards
“formulate and adopt water quality control plans for all areas within the region.”
(§ 13240.) The regional boards’ water quality plans, called basin plans, must address the
beneficial uses to be protected as well as water quality objectives, and they must establish
a program of implementation. (§ 13050, subd. (j).) Water quality objectives are the
limits or levels of constituents or characteristics allowed to protect the quality of the
water. (§ 13050, subd. (h).)
3
Basin Plans
Basin plans cover both point source and nonpoint source pollution. Point source
discharge is discharge from a discrete conveyance, such as a pipe, ditch, canal, tunnel, or
conduit, while discharge that is not from a point source, such as agricultural runoff, is
nonpoint source (NPS) pollution. (City of Arcadia v. State Water Resources Control Bd.
(2006) 135 Cal. App. 4th 1392, 1403.) Here, we are concerned with NPS pollution.
The Central Coast basin plan “encompasses all of Santa Cruz, San Benito,
Monterey, San Luis Obispo, and Santa Barbara Counties as well as the southern one-third
of Santa Clara County, and small portions of San Mateo, Kern, and Ventura Counties.
Included in the region are urban areas such as the Monterey Peninsula and the Santa
Barbara coastal plain; prime agricultural lands [such] as the Salinas, Santa Maria, and
Lompoc Valleys; National Forest lands, extremely wet areas like the Santa Cruz
mountains; and arid areas like the Carrizo Plain.”
The basin plan has three components: (1) identification of the beneficial uses to
be protected; (2) water quality objectives to protect those uses; and (3) an implementation
program to accomplish those objectives. The basin plan identifies numerous beneficial
uses of water, including municipal and domestic water supply, protection of recreation
and aquatic life, and agricultural supply.
The water quality objectives relevant here are for toxicity, pesticides, and nitrates.
Toxicity: “All waters shall be maintained free of toxic substances in
concentrations which are toxic to, or which produce detrimental physiological
responses in, human, plant, animal, or aquatic life.”
Pesticides: “No individual pesticide or combination of pesticides shall reach
concentrations that adversely affect beneficial uses. There shall be no increase in
pesticide concentrations found in bottom sediments or aquatic life.”
Nitrates: For municipal water: 45 mg/L (milligrams per liter). (By comparison, it
is 100 mg/L for agricultural use.)
4
The implementation component relies on waste discharge requirements and
waivers and enforcement actions. The basin plan recognizes that the Porter-Cologne Act
constrains regional boards from specifying the manner of compliance, and calls for
encouraging implementation of best management practices.
The NPS Policy
Basin plans must be consistent with “state policy for water quality control.”
(§ 13240.) Two such policies are relevant here. The first is the Policy for
Implementation and Enforcement of Nonpoint Source Pollution Control Program (the
NPS Policy). The NPS Policy was adopted in 2004 to fulfill the requirements of Section
13369. Section 13369 requires the State Board, in consultation with other agencies, to
prepare a detailed program for implementing the state’s NPS management plan. The
NPS Policy reflects that the discharge of waste into the waters of the state is a privilege
not a right. (§ 13263, subd. (g).)
Under the NPS Policy, implementation programs for NPS pollution control shall
include the following five key elements: (1) address NPS pollution in a manner that
achieves and maintains water quality objectives and beneficial uses, including any
applicable antidegradation requirements; (2) have a high likelihood that the program will
attain water quality requirements, including consideration of the management practices to
be used and the process for ensuring their proper implementation; (3) include a specific
time schedule, and corresponding quantifiable milestones designed to measure progress
toward reaching the specified requirements; (4) include sufficient feedback mechanisms
to determine if the program is achieving its stated purpose; and (5) make clear, in
advance, the potential consequences for failure to achieve the program’s stated purposes.
The NPS Policy recognizes that the “challenges to implementing statewide
prevention and control of NPS pollution discharges are significant.” “Current land use
management practices that have resulted in NPS pollution have a long and complicated
physical, economic and political history. . . . Therefore, it is expected that it will take a
5
significant amount of time for the [regional boards] to approve or endorse NPS control
implementation programs throughout their regions, and even longer for those programs to
achieve their objectives.” “Most NPS management programs typically depend, at least in
part, upon discharger implementation of management practices (MPs) to control nonpoint
sources of pollution.”
The Antidegradation Policy
The second relevant water policy is Resolution No. 68-16, Statement of Policy
with Respect to Maintaining High Quality of Waters in California. This policy is known
as the antidegradation policy. (Asociacion de Gente Unida por el Agua v. Central Valley
Regional Water Quality Control Bd. (2012) 210 Cal. App. 4th 1255, 1259, fn. 2 (AGUA).)
It sets forth the policy of the state to regulate the granting of permits and licenses for the
disposal of wastes into the waters of the state to achieve the “highest water quality
consistent with maximum benefit to the people of the State” and where the quality of
water is higher than that established by adopted policies, the higher quality must be
maintained “to the maximum extent possible consistent with the declaration of the
Legislature.”
In AGUA, supra, 210 Cal. App. 4th 1255, this court explained the process for an
antidegradation analysis. “[T]he Regional Board must compare the baseline water
quality (the best quality that has existed since 1968) to the water quality objectives. If the
baseline water quality is equal to or less than the objectives, the objectives set forth the
water quality that must be maintained or achieved. In that case the antidegradation policy
is not triggered. However, if 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.” (Id. at p. 1270.)
Discharge Requirements and Waivers
Anyone discharging waste that could affect the quality of waters in California
must file a discharge report. (§ 13260, subd. (a).) The regional boards regulate such
6
waste discharges by prescribing requirements. (§ 13263.) Such discharge requirements
“may specify certain conditions or areas where the discharge of waste, or certain types of
waste, will not be permitted.” (§ 13243.)
The discharge requirements may be waived “if the state board or a regional board
determines . . . that the waiver is consistent with any applicable state or regional water
quality control plan and is in the public interest.” (§ 13269, subd. (a)(1).) A waiver may
not exceed five years, may be renewed, and may be terminated at any time by the State
Board or the regional board. (Id., subd. (b)(1).) “The conditions of the waiver shall
include, but need not be limited to, the performance of individual, group, or watershed-
based monitoring . . . . Monitoring requirements shall be designed to support the
development and implementation of the waiver program, including, but not limited to,
verifying the adequacy and effectiveness of the waiver’s conditions.” (Id., subd. (a)(2).)
Neither a waste discharge requirement nor a waiver thereof is permitted to specify
a particular manner of compliance with the discharge standard, with two exceptions not
pertinent here. (§ 13360, subd. (a).) “Section 13360 is a shield against unwarranted
interference with the ingenuity of the party subject to a waste discharge requirement; it is
not a sword precluding regulation of discharges of pollutants. It preserves the freedom of
persons who are subject to a discharge standard to elect between available strategies to
comply with that standard.” (Tahoe-Sierra Preservation Council v. State Water
Resources Control Bd. (1989) 210 Cal. App. 3d 1421, 1438.)
In its challenge to the modified waiver, Coastkeeper contended and the trial court
found, for the most part, that the modified waiver did not comply with section 13269
because it was not consistent with the Central Coast basin plan, including the NPS Policy
and antidegradation policy, and was not in the public interest.
7
FACTUAL AND PROCEDURAL BACKGROUND
The 2004 Waiver
In July 2004 the Regional Board adopted a conditional waiver pursuant to section
13269 (the 2004 waiver) “to regulate discharges from irrigated lands to ensure that such
discharges are not causing or contributing to exceedances of any Regional, State, or
Federal numeric or narrative water quality standard.” At that time, the Central Coast
Region had 600,000 acres of farmland and over 2,500 operations that could potentially
discharge waste in the state’s waters. Under the 2004 waiver, “Agricultural dischargers
enrolled and established farm plans based on education and outreach, and created an
industry-led, nonprofit, monitoring program.”
The Regional Board’s Draft Waivers and Comments
Beginning in late 2008, the Regional Board staff began working on a subsequent
waiver. In July 2009 the 2004 waiver was renewed for one year. In 2010 the Regional
Board staff declared a need to change the 2004 waiver because it lacked clarity and did
not focus on accountability and verification of directly resolving the known water quality
problems. “The conditions of the 2004 Conditional Waiver address all common
problems associated with all agricultural operations equally and without specific targets
or timelines for compliance.” Staff found no evidence that the 2004 waiver improved
water quality.
Over the next few years, the Regional Board held a series of meetings and
workshops with various stakeholders, including environmental interest groups and
agricultural interest groups. Staff produced the first preliminary draft waiver in February
2010. We refer to this document as the 2010 preliminary draft. The 2010 preliminary
draft directly addressed “agricultural discharges – especially contaminated irrigation
runoff and percolation to groundwater causing widespread toxicity, unsafe levels of
nitrate, unsafe levels of pesticides, and excessive sediment in surface waters and/or
groundwaters. The [draft] also focuse[d] on those areas of the Central Coast Region
8
already known to have, or [be] at great risk for, severe water quality impairment. In
addition, the [draft] require[d] the effective implementation of management practices
(related to irrigation, nutrient, pesticide and sediment management) that will most likely
yield the greatest amount of water quality protection. The [draft] include[d] immediate
requirements to eliminate or minimize the most severe or impactful agricultural
discharges and additional requirements with specific and reasonable time schedules to
eliminate or minimize degradation from all agricultural discharges. The [draft] also
includes clear and direct methods and indicators for verifying compliance and monitoring
progress over time.”
The 2010 preliminary draft required enhanced monitoring, including individual
monitoring. It prohibited certain discharges, including prohibiting “excessive use or
over-application of fertilizer in excess of crop needs.” It required annual updated farm
plans and provided a schedule (two to four years) for implementing management
measures, and prohibited certain pesticide usage.
Numerous agricultural interests commented on the 2010 preliminary draft; in
general, they were disappointed in its direction away from a collaborative approach to a
regulatory approach that some found heavy handed. Many expressed concern about the
economic impact of such regulation. The comments of environmental interests were in
support of the 2010 preliminary draft. These interests agreed with the new emphasis on
clear standards and timelines instead of training and education.
After more workshops, in late 2010 the Regional Board staff prepared a new draft
waiver. The new draft retained much of the 2010 preliminary draft but introduced the
idea of categorizing dischargers into three tiers based on size of farm operation,
proximity to impaired watercourse, use of certain chemicals (chlorpyrifos and diazinon),
and the type of crop grown. Dischargers in Tier 3 posed the highest threat to water
quality and correspondingly faced the greatest amount of discharge control conditions,
individual monitoring, and reporting.
9
Agricultural interests again objected to the new draft and its regulatory
requirements. Environmental interests, on the other hand, were concerned that the new
draft was weaker on environmental protection than the 2010 preliminary draft. A group
of environmental interests, including some of those constituting Coastkeeper, objected
that the new draft did not contain adequate mechanisms to address the degraded state of
central coast waterways, lacked a vision for maintenance of vegetative buffers, exempted
tile drains 3 from regulation, and defined Tier 3 too narrowly as dischargers could escape
the requirements of Tier 3 by changing the pesticides used.
A third draft waiver was released in March 2011. This draft focused on two
particular pesticides that were known sources of toxicity--chlorpyrifos and diazinon. A
further draft waiver was issued in September 2011. A group of environmental interests,
including Coastkeeper, “agreed to disagree” on many substantive points in the latest
draft.
In a presentation in a workshop in February 2012, Coastkeeper indicated its
support for the 2010 preliminary draft, with certain additions and revisions, including
requiring a 30-foot vegetative buffer along Tier 2 and Tier 3 streams.
The Regional Board’s 2012 Waiver
In March 2012 the Regional Board adopted a final order, Order No. R3-2012-0011
(the 2012 waiver). At that time the Central Coast Region had 435,000 acres of irrigated
land and approximately 3,000 agricultural operations. The 2012 waiver classified
dischargers into three tiers based on their risk to water quality and the level of discharge.
Staff reported the 2012 waiver imposed fewer requirements on Tier 1 dischargers than
the 2004 waiver, comparable requirements for Tier 2 dischargers, and greater
requirements on Tier 3 dischargers. Tier 1 dischargers were required to provide online
3 Tile drains are subsurface drainage generated by installing drainage systems to lower
the water table below irrigated lands.
10
compliance information annually. Tier 2 dischargers were required to develop a farm
plan and implement management practices for irrigation, nutrients, pesticides, and
erosion, with schedules for implementation. There were requirements for education,
surface receiving and groundwater monitoring, backflow prevention, and annual
reporting requirements for the total amount of nitrogen applied to farmlands, and riparian
and wetland photographic monitoring and reporting. There were additional monitoring
and reporting requirements for Tier 3 dischargers, particularly those posing the greatest
risk to water quality. These requirements included nitrogen balance reporting, water
quality buffer plans, irrigation and nutrient management plans, and individual surface
runoff monitoring.
Review by the State Board
In April 2012 Coastkeeper petitioned the State Board to review the 2012 waiver
pursuant to section 13320. Coastkeeper objected that the Tier 3 standard that dischargers
“meet the nitrate balance ratio targets” proposed by staff in earlier drafts of the waiver
had been arbitrarily revised by replacing “meet” with “make progress.” Moreover, the
hard “targets” in the earlier versions became soft “milestones” in the modified waiver.
Coastkeeper argued, “Removing the only firm and measurable requirements for nitrate
discharges renders the [2012 waiver] inconsistent with California Water Code Section
13269 because the conditional waiver is not consistent with the Basin Plan and not in the
public interest.”
Agricultural interests also petitioned for review, arguing the 2012 waiver was not
legally adopted, was not reasonable, did not properly consider all economic, social,
tangible, and intangible values involved, and imposed regulations that were unfeasible.
At the request of certain agricultural interests, the State Board stayed certain
provisions of the 2012 waiver (§ 13320, subd. (e)) and reviewed it on its own motion
(§ 13320, subd. (a)).
11
Coastkeeper petitioned for a writ of mandate challenging this stay and requested a
preliminary injunction. A group of agricultural interests intervened, including appellants
Grower-Shipper Association of Central California, Grower-Shipper Association of Santa
Barbara and San Luis Obispo Counties, Western Growers Association, and California
Farm Bureau Federation (interveners). Interveners united with the State Board in
opposing Coastkeeper’s petition and request.
The trial court denied the request for a preliminary injunction.
In comments to an earlier draft of the 2012 waiver, Coastkeeper opposed
provisions relating to containment structures, nutrient management plan, and nitrogen
balance ratios, and proposed additional discussion on monitoring. In further comments,
Coastkeeper lamented the changes from the 2010 preliminary draft, and emphasized the
need for reporting nitrogen balance ratios. Coastkeeper also objected to compliance
provisions and argued broader toxicity requirements were required.
The State Board’s Modified Waiver
At its meeting on September 24, 2013, the State Board adopted Order No. R3-
2012-0011 (the 2012 waiver) as modified by Order No. WQ-2013-0101 (the modified
waiver). The modified waiver recognized that nitrate pollution of drinking water was a
critical problem in the region, with hundreds of drinking wells having nitrate levels in
excess of state standards. It further recognized that fertilizer from irrigated agriculture
was the largest source of nitrate pollution.
In a media release announcing the modified waiver, the State Board noted that an
expert panel was to be convened “to assess existing agricultural nitrate control practices
and propose new practices to protect groundwater as appropriate.” This expert panel
would “consist of a broad spectrum of experts from relevant disciplines and will hold
several public workshops to take input and comment before making proposals to the
[State Board]. Many of the groundwater issues contested in the petitions are best
addressed by the Expert Panel, and we will task the Expert Panel with certain issues
12
related to the impact of agricultural discharges on surface water as well.” The State
Board would request the expert panel to consider “the indicators and methodologies for
determining risk to surface and groundwater quality, the appropriate targets for
measuring progress in lowering that risk, and the efficacy of groundwater and surface
water discharge monitoring in evaluating practice effectiveness.” 4 The State Board
stressed the modified waiver “constitutes only an interim determination as to how to
move forward on the difficult and complex questions presented.”
The modified waiver regulated discharges of wastes from irrigated agricultural
lands, commercial nurseries and greenhouses, and lands planted with commercial crops
that were not yet marketable, such as vineyard and tree crops. The regulated discharges
included waste discharges to surface water and groundwater.
The State Board upheld most of the 2012 waiver, but amended certain
requirements. Farm plans for water quality were no longer required to provide the results
of methods used to verify effectiveness and compliance, but only to describe the method
and provide a schedule for assessing the effectiveness of each management practice. The
nitrogen balance ratio reporting requirements for high risk Tier 3 dischargers were
eliminated.
The modified waiver added provision No. 83.5 which addressed compliance with
the water quality standards, the basin plan, and the time schedules for the effective
control of various discharges. It provided: “Dischargers must (1) implement
management practices that prevent or reduce discharges of waste that are causing or
4 On November 3, 2016, this court denied the State Board’s request for judicial notice of
a report by the expert panel. The trial court had denied the interveners’ request to take
judicial notice of an unrelated declaration and attached reports. On appeal, interveners
note this court may take judicial notice of this material, but do not request that we do so
or provide a cogent argument why we should. Therefore, we also decline to take judicial
notice of this additional material.
13
contributing to exceedances of water quality standards; and (2) to the extent practice
effectiveness evaluation or reporting, monitoring data, or inspections indicate that the
implemented management practices have not been effective in preventing the discharges
from causing or contributing to exceedances of water quality standards, the Discharger
must implement improved management practices.”
The legality of provision No. 83.5 is hotly contested on appeal, as we discuss in
Part IVB, post.
Proceedings in the Trial Court
Coastkeeper filed an amended petition for a writ of mandate seeking judicial
review of the modified waiver pursuant to section 13330. It alleged the modified waiver
violated section 13269, subdivision (a) because it did not require dischargers to comply
with water quality objectives and did not have monitoring requirements to verify the
adequacy and effectiveness of the waiver’s conditions. Coastkeeper further alleged the
modified waiver violated the antidegradation policy by failing to provide for effective
monitoring to adequately and effectively detect degradation. It contended the State
Board improperly excluded relevant scientific evidence, the U.C. Davis Report, and
violated the California Environmental Quality Act (CEQA) (Pub. Resources Code,
§ 21000 et seq.) by failing to consider supplemental environmental review.
The State Board demurred to the fifth cause of action, violation of CEQA, arguing
Coastkeeper had failed to exhaust its administrative remedies on this issue because it had
failed to raise any CEQA issue before the State Board.
The Trial Court’s Ruling
Section 13330, subdivision (e), provides that Code of Civil Procedure section
1094.5 shall govern proceedings in the trial court and that the trial court shall exercise its
independent judgment on the evidence. “In exercising its independent judgment, a trial
court must afford a strong presumption of correctness concerning the administrative
findings, and the party challenging the administrative decision bears the burden of
14
convincing the court that the administrative findings are contrary to the weight of the
evidence.” (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817 (Fukuda).)
In its ruling, the trial court reviewed the terms of the 2004 waiver (12AA 2814)
and the 2010 preliminary draft. It compared the Regional Board’s 2012 waiver to both
the 2004 waiver and to the 2010 preliminary draft. It found the 2012 waiver “more
demanding” than the 2004 waiver, but “less demanding” than the 2010 preliminary draft.
The court found the modified waiver was “not consistent with the Basin Plan
because it lacks sufficiently specific, enforceable measures and feedback mechanisms
needed to meet the Basin Plan's water quality objectives.” “The problem with the
Modified Waiver is that there is little to support a conclusion that the Waiver will lead to
quantifiable improvements in water quality or even arrest the continued degradation of
the region’s waters.”
The court found the modified waiver’s iterative approach of requiring improved
management practices until discharges no longer cause or contribute to exceedances of
water quality standards was unlikely to work because the modified waiver contained no
provisions that would identify the individual dischargers causing or contributing to
exceedances. The court noted that “implementing management practices is not a
substitute for actual compliance with water quality standards.” Further, the modified
waiver failed to define what constituted an “improved” management practice or to
include any standards for verification of reduced pollution. The court also faulted the
modified waiver for subjecting only a small number of growers (3 percent of growers and
14 percent of irrigated acreage) to the more stringent requirements of Tier 3. The vast
majority of growers were not subject to individual surface monitoring to identify sources
of exceedances or the effectiveness of individual farm management practices.
The court found the modified waiver did not comply with the NPS Policy
(discussed ante in the Legal Background) “because it lacks adequate monitoring and
reporting to verify compliance with requirements and measure progress over time;
15
specific time schedules designed to measure progress toward reaching quantifiable
milestones; and a description of the action(s) to be taken if verification/feedback
mechanisms indicate or demonstrate management practices are failing to achieve the
stated objectives.”
The court did not decide whether the modified waiver complied with the
antidegradation policy (also discussed ante), but instead found it was unable to determine
compliance because the State Board had failed to follow the procedure set forth in
AGUA, supra, 210 Cal. App. 4th 1255, as necessary to determine compliance with the
antidegradation policy.
The court further found the modified waiver did not have adequate monitoring
provisions because the cooperative surface receiving water monitoring for those in Tier 1
and Tier 2 fail to identify the source of exceedances. The court found the modified
waiver was not in the public interest “because there is no evidence it will lead to
quantifiable improvement in water quality or arrest the continued degradation of the
Central Coast Region’s waters.”
The court found the State Board did not abuse its discretion in refusing to admit
the U.C. Davis Report. However, it directed the State Board on remand to reconsider
whether the report should be admitted.
The trial court did not rule on the demurrer to the CEQA claim. While it was not
persuaded that supplemental CEQA review of the State Board’s changes to the 2012
waiver (that resulted in the modified waiver) was required, the court directed the State
Board on remand to consider whether supplemental review is required to comply with
CEQA.
The trial court issued a peremptory writ of mandate compelling the State Board to
set aside the modified waiver and reconsider the 2012 waiver, and to take sufficient
action to “to formulate a new or modified waiver under Water Code § 13269 or another
program that satisfies the waste discharge requirements of the Water Code.” The court
16
permitted the State Board to allow the modified waiver to remain in effect while it
formulated a new waiver as directed.
The State Board and interveners appealed.
DISCUSSION
I
Exhaustion of Administrative Remedies
The State Board contends Coastkeeper failed to exhaust administrative remedies
as to multiple issues by failing to raise those issues at appropriate times during the
administrative process. The State Board identifies five such issues: (1) pesticide control
provisions; (2) tile drain provisions; (3) the buffer provisions; (4) the tiering provisions;
and (5) the individual monitoring provisions (the five specific provisions). Both the State
Board and interveners contend Coastkeeper failed to exhaust administrative remedies as
to the antidegradation policy claim.
Coastkeeper argues it does not contend any or all of the five specific provisions
make the modified waiver unlawful. Rather, Coastkeeper claims to be challenging the
modified waiver’s failure to comply with the provisions of section 13269 requiring
consistency with the basin plan and public interest and mandating effective verification
requirements. Thus, according to Coastkeeper, the exhaustion requirement does not
apply to the five specific provisions.
A. The Exhaustion Doctrine
“In brief, the rule is that where an administrative remedy is provided by statute,
relief must be sought from the administrative body and this remedy exhausted before the
courts will act.” (Abelleira v. District Court of Appeal (1941) 17 Cal. 2d 280, 292.) The
rule “is not a matter of judicial discretion, but is a fundamental rule of procedure . . .
binding upon all courts.” (Id. at p. 293.)
“The primary purpose of the doctrine ‘is to afford administrative tribunals the
opportunity to decide in a final way matters within their area of expertise prior to judicial
17
review.’ [Citation.] ‘The essence of the exhaustion doctrine is the public agency’s
opportunity to receive and respond to articulated factual issues and legal theories before
its actions are subjected to judicial review.’ [Citations.] The doctrine prevents courts
from interfering with the subject matter of another tribunal. [Citation.]” (Citizens for
Open Government v. City of Lodi (2006) 144 Cal. App. 4th 865, 874.) Another purpose of
the doctrine “ ‘is to lighten the burden of overworked courts in cases where
administrative remedies are available and are as likely as the judicial remedy to provide
the wanted relief.’ [Citation.]” (Sierra Club v. San Joaquin Local Agency Formation
Com. (1999) 21 Cal. 4th 489, 501.)
To advance the purpose of the exhaustion doctrine, the exact issue, not merely
generalized statements, must be raised. (Sierra Club v. City of Orange (2008) 163
Cal. App. 4th 523, 535.) “ ‘The petitioner bears the burden of demonstrating that the
issues raised in the judicial proceeding were first raised at the administrative level.
[Citation.]’ [Citation.] An appellate court employs a de novo standard of review when
determining whether the exhaustion of administrative remedies doctrine applies.
[Citation.]” (Id. at p. 536.)
In a petition for review by the State Board, the issues an aggrieved party may raise
are limited. “If the action or inaction that is subject of the petition was taken by the
regional board after notice and opportunity to comment, the petition to the state board
shall be limited to those substantive issues or objections that were raised before the
regional board.” (Cal. Code Regs., tit. 23, § 2050(c).)
B. The Five Specific Provisions
We begin by noting that we need not decide whether Coastkeeper properly
exhausted its administrative remedies as to the provisions relating to pesticide controls,
tile drains, and vegetation or riparian buffers because the trial court did not rely on any of
these provisions in finding the modified waiver failed to comply with the law. Instead,
the court indicated that it was “not persuaded that an adequate Waiver necessarily must
18
include nitrogen balancing ratios, broader farm plan reporting, more rigorous pesticide
controls, mandatory vegetation/riparian buffers, and/or more comprehensive tile drain
monitoring.” (Fn. omitted.) Thus, no issue relating to pesticide controls, tile drains, and
vegetation or riparian buffers is before us because none of these subjects formed a basis
for the trial court’s ruling or otherwise supported it in any way.
The trial court found the “fundamental problem” with the modified waiver was
that the number of growers subject to the stringent requirements of Tier 3 was too small.
Dischargers are in Tier 3 if they meet one of two criteria: (1) they grow crops with a high
potential to discharge nitrogen to groundwater and their total irrigated acreage is 500
acres or more; or (2) they apply chlorpyrifos and diazinon and irrigation or stormwater is
discharged to a listed impaired waterbody. Coastkeeper did raise the issue, before both
the Regional Board and the State Board, that dischargers can change use of the two
named pesticides to others such as malathion, and thus reduce the number of growers in
Tier 3. To that extent only, Coastkeeper exhausted administrative remedies as to the
challenge to Tier 3.
The trial court found the modified waiver had inadequate monitoring provisions.
That finding was based in part on the limitations (e.g., inability to identify specific
dischargers) of representative monitoring as opposed to individual monitoring.
Coastkeeper did raise the need for individual monitoring before both the Regional Board
and the State Board. Indeed, the State Board conceded the issue of cooperative
groundwater monitoring was properly raised. Thus, the issue of the inadequacy of
representative or cooperative monitoring was properly exhausted.
C. The Antidegradation Policy
The first time the issue of noncompliance with the antidegradation policy was
raised was a July 3013 comment to a draft of the modified waiver by a group of
environmental interests that did not include Coastkeeper. That comment specifically
objected that the antidegradation analysis had not been conducted in accordance with the
19
recent case, AGUA, supra, 210 Cal. App. 4th 1255. Although AGUA was not yet decided
when the waiver was before the Regional Board or when Coastkeeper filed its petition for
review with the State Board, the State Board found that compliance with the
antidegradation policy in general had not been raised during the relevant processes. For
this reason, the State Board found failure to exhaust administrative remedies as to that
policy. 5 (See Cal. Code Regs., tit. 23, § 2050(c) [where challenged action or inaction
taken by the regional board, the petition to the state board shall be limited to those
substantive issues or objections that were raised before the regional board].)
Coastkeeper argues administrative remedies were exhausted because the Regional
Board was apprised of the need to satisfy the antidegradation policy. Several comments
urged the board to act to prevent further degradation. Coastkeeper notes the Regional
Board made findings that the policy had been satisfied. While it is clear the Regional
Board was aware of the policy and the need to comply with it, there was no specific
objection that it had failed to do so. Coastkeeper has not pointed to any comment before
the Regional Board that mentioned the policy. Thus, administrative remedies were not
exhausted as to the objection of noncompliance with the antidegradation policy.
II
Standard of Review of Adequacy of Modified Waiver
Where, “as here, the trial court is required to review an administrative decision
under the independent judgment standard of review, the standard of review on appeal of
the trial court's determination is the substantial evidence test. [Citations.]” (Fukuda,
supra, 20 Cal.4th at p. 824.) “[W]e review its factual determinations under the
5 The State Board noted it had undertaken a review of the antidegradation policy in light
of AGUA and understood “the need to provide better tools for regional boards to conduct
an appropriate analysis.” “These resources will be available to the Central Coast Water
Board as it develops its next iteration of the [modified waiver].”
20
substantial evidence standard and its legal determinations under the de novo standard.
[Citations.] ‘[W]e are not bound by the legal determinations made by the state or
regional agencies or by the trial court. [Citation.] But we must give appropriate
consideration to an administrative agency’s expertise underlying its interpretation of an
applicable statute.’ [Citation.]” (Coastal Environmental Rights Foundation v. California
Regional Water Quality Control Board (2017) 12 Cal.App.5th 178, 190.)
Accordingly, we review the factual findings of the trial court for substantial
evidence. The ultimate question of whether the modified waiver complies with the law is
a question of law we review de novo. (AGUA, supra, 210 Cal.App.4th at p. 1268 [de
novo review of whether regional board order complied with law].)
III
Compliance with Basin Plan
A. The Trial Court’s Findings
The trial court found “the Modified Waiver is not consistent with the Basin Plan
because it lacks sufficiently specific, enforceable measures and feedback mechanisms
needed to meet the Basin Plan’s water quality objectives.” The court found “little to
support a conclusion that the [Modified] Waiver will lead to quantifiable improvements
in water quality or even arrest the continued degradation of the region’s waters.”
After setting out at length the parties’ contentions, the trial court found three areas
in which the modified waiver was inadequate: (1) it continued the failed approach of the
2004 waiver which had failed to improve the region’s water quality or even halt its
continued degradation; (2) its coverage was inadequate because it included too few
growers (about 3 percent of growers and 14 percent of irrigated acreage) in Tier 3 and
subjected the vast majority of growers to the same or less stringent requirements than the
2004 waiver; and (3) its monitoring requirements were inadequate because the
cooperative monitoring would not identify the individual dischargers who were causing
21
or contributing to the pollution problem and there were no standards or benchmarks for
showing improvement.
Significantly, the court did not find that an adequate waiver must include
“nitrogen balancing ratios, broader farm plan reporting, more rigorous pesticide controls,
mandatory vegetation/riparian buffers, and/or more comprehensive tile drain
monitoring.” 6 (Fn. omitted.)
B. Contentions of Error
The State Board and interveners contend, in general, that the trial court made three
significant errors in approaching this case. First, they contend the court erroneously
compared the modified waiver to the 2010 preliminary draft. They argue the draft, which
was never adopted by the Regional Board, had no legal significance and should not be
used as evidence. The State Board adds that the court erred in using the 2010 preliminary
draft as the baseline for adequate standards.
Second, appellants and interveners contend the trial court failed to defer to the
State Board’s technical expertise and failed to apply a presumption of correctness to its
findings. In particular, appellants contend the court failed to recognize and defer to the
State Board’s plan to refer many of the difficult, technical questions to an expert panel.
They correctly note that deference is required.
Administrative findings come before the court with “a strong presumption of
correctness.” (Fukuda, supra, 20 Cal.4th at p. 817.) “An administrative agency’s
construction of the authority vested in the agency to carry out a statutory provision is
entitled to great weight and will be followed unless it is clearly erroneous or
unauthorized.” (Western States Petroleum Ass’n v. Department of Health Services
(2002) 99 Cal. App. 4th 999, 1006.) “Greater deference should be given to an agency’s
6 Rather than focus their briefing on the trial court’s actual ruling, appellant and
interveners devote extensive (and needless) briefing on these uncontested issues.
22
interpretation where ‘ “the agency has expertise and technical knowledge, especially
where the legal text to be interpreted is technical, obscure, complex, open-ended, or
entwined with issues of fact, policy, and discretion.” ’ ” (Citizens for Responsible
Equitable Environmental Development v. City of San Diego (2010) 184 Cal. App. 4th
1032, 1041.)
Third, appellant and interveners argue the trial court ignored the reasonableness
standard of the Porter-Cologne Act and the need to balance competing interests. The
goal of water quality regulation is “to attain the highest water quality which is
reasonable, considering all demands being made and to be made on those waters and the
total values involved, beneficial and detrimental, economic and social, tangible and
intangible.” (§ 13000, italics added.) Water quality objectives are established for “the
reasonable protection of beneficial uses of water or the prevention of nuisance within a
specific area.” (§ 13050, subd. (h), italics added.)
With these claims and considerations in mind, we turn to the question of whether
substantial evidence supports the trial court’s findings. While the court primarily
criticized the approach of the modified waiver, we focus on whether the conditions in the
modified waiver are consistent with the basin plan. (§ 13269, subd. (a).)
1. Coverage
The trial court found the low number of growers in Tier 3 was a “fundamental
problem” with the modified waiver. In addition, the court noted Tier 3 growers could
move to a lower tier by participating in approved program or project or, in some cases,
using pesticides other than diazinon or chlorpyrifos.
The modified waiver categorizes dischargers into three tiers. These tiering
categories are the same as those originally contained in the 2012 Waiver. A discharger
falls in Tier 3 if the individual farm or ranch meets one of the two following criteria: (1)
grows crop types with a high potential to discharge nitrogen to the groundwater at the
farm/ranch, and the total irrigated acreage of the farm/ranch is greater than or equal to
23
500 acres; or (2) applies chlorpyrifos or diazinon at the farm/ranch, and the farm/ranch
discharges irrigation or stormwater runoff to a waterbody listed as impaired due to
toxicity or pesticides.
As discussed ante in Part IB, Coastkeeper objected very narrowly to only one
aspect of the tiering system; its objection was only to the ability of a Tier 3 grower to
move to a lower tier by using different pesticides. In other words, Coastkeeper objected
that the modified waiver’s focus, evident in the tiering structure, was limited to two
pesticides--chlorpyrifos and diazinon.
The Regional Board decided to include only these two pesticides as part of the
tiering structure because they were the major causes of severe toxicity in agricultural
areas. It had considered using the list of high risk or restricted use pesticides developed
by the Department of Pesticide Regulation, but had determined that many of these
pesticides were not in broad use in the region and had not been documented to cause
toxicity or pesticide specific problems. The Regional Board also considered including, in
the tiering, the more than 75 pesticides in use, but concluded the result would have been a
very complicated process. It explained its final decision: “To focus on priority water
quality issues and provide for a less complicated tiering process, staff chose to include
only those pesticides that are currently documented as a primary cause of toxicity in the
Central Coast region – chlorpyrifos and diazinon.”
In comments to a draft of the modified waiver, Coastkeeper claimed, “New
information indicates that growers are switching away from Diazinon and chlorpyrifos
and towards malathion, which will result in many fewer growers being enrolled in the
most stringent regulatory tier, Tier 3.” This “new information,” however, is not included
in the record (or at least Coastkeeper has not identified it on appeal). Given the lack of
evidence to refute the reasonable determination to focus regulation on the main pesticides
known to be in use and causing the water quality problems, the trial court’s finding as to
the inadequacy of the tiering structure is not supported by substantial evidence.
24
2. Adequacy of Monitoring Requirements
Section 13269, subdivision (b) provides a waiver shall include monitoring
requirements. “Monitoring requirements shall be designed to support the development
and implementation of the waiver program, including, but not limited to, verifying the
adequacy and effectiveness of the waiver's conditions.” (Id., subd. (a)(2).) The issue
here is whether the monitoring provisions of the modified waiver are adequate.
a. Monitoring Provisions in the Modified Waiver
The modified waiver includes three monitoring and reporting programs, one for
each tier. For Tier 1, surface receiving water quality must be monitored, either
individually or cooperatively; cooperative monitoring is encouraged. Dischargers must
develop a plan describing how the monitoring will achieve objectives, providing for
certain analyses by a certified laboratory, and including a schedule for sampling.
Dischargers must file an annual report that includes a summary of reported exceedances,
a discussion of data illustrating compliance with water quality standards, and the
evaluation of pesticide and toxicity analyses. Groundwater monitoring requires sampling
of wells for private domestic drinking water and agricultural groundwater. Again, this
monitoring may be cooperative. The focus of the groundwater monitoring is on drinking
water and the presence of nitrates. 7
The monitoring program for Tier 2 contains the same requirements as that for Tier
1 and adds a calculation of nitrate-loading risk factors, reporting of the total nitrogen
applied and an annual compliance form, and photo monitoring. The annual compliance
7 The trial court criticized the monitoring program for emphasizing the quality of
drinking water over the effectiveness of implemented management practices.
Coastkeeper’s brief, however, stresses the problem of polluted drinking water. We do not
fault the State Board and Regional Board for focusing on the most immediate problem.
(See U.S. Cellular Corp. v. F.C.C. (D.C. Cir. 2001) 254 F.3d 78, 87 [Regulatory
“agencies need not address all problems ‘in one fell swoop’ ”], cited in Western States
Petroleum Assn. v. Board of Equalization (2013) 57 Cal. 4th 401, 421.)
25
form required verifications of compliance, identification of discharges and management
practices, disclosure of nitrogen concentrations and application of fertilizers, and proof of
backflow prevention. There were additional requirements for dischargers with a high
nitrate-loading risk or who were adjacent to an impaired waterbody.
The monitoring program for Tier 3 added individual surface discharge monitoring
and reporting, an irrigation and nutrient plan for dischargers with a high nitrate-loading
risk, and a water quality buffer plan for those adjacent to impaired waterbodies.
The trial court rejected some of Coastkeeper’s claims of deficiency, such as the
failure to require all dischargers to perform individual monitoring, the frequency of
sampling, statistical monitoring, and the disclosure of monitoring information to the
public. Nonetheless, the court found the monitoring requirements were inadequate
because (1) they failed to provide for the identification of the individual discharger
responsible for exceedances, and (2) they failed to verify compliance and assess the
effectiveness of management practices.
b. Failure to Identify Specific Discharger
As the trial court recognized, both the section 13269 and the NPS Policy (“third-
party programs”) expressly allow the use of group or watershed monitoring. Individual
monitoring would be costly and could overwhelm the Regional Board with paperwork
from over 3,000 dischargers. The court concluded, therefore, that the State Board acted
within its discretion in limiting individual surface discharge monitoring to high risk
dischargers. The court also found, however, that group monitoring failed to identify the
particular source of an exceedance. It noted that the State Board acknowledged this
limitation and suggested a possible solution, but failed to include any changes to address
the problem. For this reason, the court concluded the modified waiver was inadequate.
The State Board expressed skepticism that the Regional Board had selected a
monitoring program “best suited to meet the purpose of identifying and following up on
high-risk discharges.” It suggested the monitoring program adopted by the Central
26
Valley Regional Water Quality Control Board may be more appropriate. That program
provided that a detected exceedance may trigger source identification, management
practice implementation, and follow up reporting. The State Board then decided to “ask
the Expert Panel to consider both the receiving water and discharge monitoring
approaches to identification of problem discharges.” It found that in the interim, focusing
the monitoring program on the high-risk dischargers was appropriate.
The trial court, however, failed to consider the State Board’s referral of the issue
to the expert panel for long-term solutions. This referral reflects the State Board’s view
that modified waiver “constitutes only an interim determination as to how to move
forward on the difficult and complex questions presented.” The only alternative solution
offered by Coastkeeper was mandatory individual monitoring for all dischargers. The
court upheld the State Board’s finding that mandatory individual monitoring was too
costly, too burdensome, and would overwhelm the Regional Board.
Without any evidence of a viable alternative, the trial court’s finding that the State
Board did nothing to address the identification of the source of exceedances is not
supported by substantial evidence.
c. Verification
Monitoring requirements must be designed to verify “the adequacy and
effectiveness of the waiver’s conditions.” (§ 13269, subd. (a)(2).) The trial court found
the monitoring requirements would show whether the implemented management
practices were reducing pollution. The court found, however, that the modified waiver
did not “set any benchmarks for defining how much ‘improvement’ a grower must show
to demonstrate compliance” and thus was inadequate.
It appears these problems that the trial court perceived in the modified waiver do
not signal a failure to meet section 13269’s requirement to verify “the adequacy and
effectiveness of the waiver’s conditions.” The court found the monitoring met this
requirement by determining and reflecting whether current management practices
27
reduced pollution. Rather, the question posed by the absence of benchmarks or a
definition of “improvement” is whether the monitoring provisions fail to meet the
requirements of the NPS Policy. That policy mandates that an NPS program have a high
likelihood of attaining water quality standards, with specific time schedules and
quantifiable milestones to measure progress. We next discuss whether the modified
waiver complies with that policy.
IV
Compliance with NPS Policy
As set forth ante in the Legal Background, to comply with the NPS Policy, five
key elements must be present: (1) address NPS pollution in a manner that achieves and
maintains water quality objectives and beneficial uses, including any applicable
antidegradation requirements; (2) have a high likelihood that the program will attain
water quality requirements, including consideration of the management practices to be
used and the process for ensuring their proper implementation; (3) include a specific time
schedule, and corresponding quantifiable milestones designed to measure progress
toward reaching the specified requirements; (4) include sufficient feedback mechanisms
to determine if the program is achieving its stated purpose; and (5) make clear, in
advance, the potential consequences for failure to achieve the program’s stated purposes.
A. Time Schedules and Milestones
The trial court found the modified waiver did not meet the requirements of the
NPS Policy because it lacked (1) adequate monitoring and reporting to verify
compliance; (2) specific time schedules and quantifiable milestones; and (3) a description
of enforcement actions if management actions fail to achieve objectives. The court found
the State Board had failed to show a high likelihood that the modified waiver would be
successful in attaining the applicable water quality standards.
The State Board stresses that the NPS Policy envisions an iterative approach, with
ongoing adjustments and improvements to control NPS pollution. This less structured
28
approach is necessary given the “significant” challenges of preventing and controlling
NPS pollution. Interveners argue instantaneous compliance with water quality objectives
is not required. They fault the trial court for expecting “a step-by-step time schedule with
specific dates, and a monitoring and reporting program designed to determine compliance
with said time schedule.” Interveners further argue the modified waiver does indeed
include time schedules and milestones.
We agree that the modified waiver does contain a number of time schedules and
milestones set forth in tables two, three, and four thereto. Most of the time schedules
relate to dates by which certain reports must be submitted. Some address specific
actions, such as installing backflow prevention devices and destroying abandoned
groundwater wells. There are specific milestones for Tier 3 dischargers relating to
percentage reduction in turbidity or sediment load, nutrients, and nitrogen.
Four provisions in the modified waiver set time schedules for Tier 3 dischargers to
effectively control waste discharges of pesticides and toxic substances, sediment and
turbidity, nutrients, and nitrates.
B. Provision No. 83.5
Compliance with these four Tier 3 time schedules, as well as compliance with the
requirements not to cause or contribute to exceedances and to comply with the basin plan,
is governed by provision No. 83.5. That provision requires dischargers to implement
management practices to reduce or prevent discharges that cause or contribute to
exceedances of water quality standards. If those practices are ineffective, the discharger
must implement improved management practices.
Provision No. 83.5 is the crux of this dispute. It effectively overrides the specific
time schedules by defining compliance to mean the implementation of increasingly
improved management practices and it does so without any definition or quantification of
improvement. The State Board added this provision as part of its review and
modification of the 2012 Waiver. The State Board explained this provision was added to
29
clarify that it would not take any enforcement action against a discharger who was
implementing and improving management practices to address water quality problems.
Dischargers need only make “a conscientious effort to identify and implement the
management practices that effectively address the water quality issue.” The State Board
noted this approach was consistent with the NPS Policy and public interest in addressing
a complex water quality issue that has few (if any) immediate and easy solutions.
Interveners contend the definition of an improved management practice is
provided by the NPS Policy’s citation to Northwest Indian Cemetery Protective Ass’n. v.
Peterson (9th Cir. 1985) 764 F.2d 581, rev. on another ground in Lyng v. Northwest
Indian Cemetery Protective Ass’n. (1988) 485 U.S. 439. In Northwest Indian, the State
of California and various non-profit organizations challenged federal plans to permit
timber harvesting and construct a road in a national forest. One point of contention was
that implementation of the federal plans would not meet the water quality requirements
for turbidity set by the regional board. The federal government argued those
requirements had been replaced by the acceptance of Forest Service Best Management
Practices (BMPs). The Ninth Circuit rejected this argument, finding that BMPs are not
standards in and of themselves and adherence to BMPs does not assure compliance. The
court made the point that a BMP can be terminated or modified if a stricter BMP is
required, such as to meet state water quality standards. (Id. at pp. 588-589.)
We read Northwest Indian to distinguish between adherence to a BMP and
compliance with the applicable water quality standard. The NPS Policy makes the same
distinction. Management practice “implementation never may be a substitute for meeting
water quality requirements.” Northwest Indian notes that compliance with the water
quality standard may require a stricter (or improved) management practice. That is also
what provision No. 83.5 says. Neither Northwest Indian nor provision No. 83.5 provides
any guidance as to how much improvement is required once a certain management
practice is determined to be ineffective in meeting the water quality standard.
30
As we have explained, the NPS Policy expressly requires time schedules and
quantifiable milestones; the purpose is to assure that the water quality objectives are
eventually met. But there is no requirement that the ultimate goal of preventing and
cleaning up NPS pollution be accomplished within the lifespan of the modified waiver.
Although the State Board has discretion to determine how much time is reasonable as
well as appropriate milestones and how quickly they must be met, the modified waiver
does not reflect any such determinations. Rather than establishing time schedules and
milestones, it requires only vague and indefinite improvement--“a conscientious effort.”
Without specific time schedules and quantifiable milestones, there is not a “high
likelihood” the program will succeed in achieving its objectives, as required by NPS
Policy.
In State Water Resources Control Bd. Cases (2006) 136 Cal. App. 4th 674, this
court found the State Board failed to implement certain salinity objectives of the 1995
Bay-Delta Plan at three locations. The State Board delayed implementation at these three
locations by several years. We found this delay was not an adequate implementation
because nothing in the 1995 Bay-Delta Plan allowed for such delay. The State Board was
in effect amending the 1995 Bay-Delta Plan without complying with the procedural
requirements for an amendment. (Id. at p. 735.)
Here, the State Board is rewriting--or amending--the NPS Policy by replacing the
required element of specific time schedules and quantifiable milestones with a vague
requirement of “improved” management practices and a “conscientious effort.” As in
State Water Resources Control Bd. Cases, rewriting the NPS Policy to delay, diminish, or
dilute a requirement that is part of the policy is improper. While we defer to an
administrative agency’s interpretation of a statute, regulation, or policy involving its area
of expertise, we owe no deference to an interpretation that “flies in the face of the clear
language and purpose of the interpreted provision.” (Communities for a Better
Environment v. State Water Resources Control Bd. (2003) 109 Cal. App. 4th 1089, 1104.)
31
The trial court did not err in finding the modified waiver did not comply with the
NPS Policy due to the absence of “specific time schedules designed to measure progress
toward reaching quantifiable milestones.”
Because the modified waiver does not comply with the NPS Policy, it does not
meet the requirements for a waiver under section 13269, subdivision (a). We need not
separately determine whether the modified waiver is “in the public interest” because it
fails to meet the legal requirements in any event.
V
Other Contentions
A. Failure to Consider U.C. Davis Report
The fourth cause of action in Coastkeeper’s petition for writ of mandate alleged
the State Board improperly excluded relevant scientific evidence, the U.C. Davis Report.
The trial court was “not persuaded that the [State] Board abused its discretion in refusing
to admit the U.C. Davis report. However, on remand the [State] Board is directed to
reconsider whether the Report should be admitted into the record.”
The State Board contends it was inappropriate to direct reconsideration of the
decision not to admit the report and the court’s ruling is inconsistent with the finding of
no abuse of discretion. “The trial court’s Ruling[] seems to reflect an approach that since
the court remanded the Modified Waiver back to the State Board, then everything else
that Coastkeeper wanted should also be reconsidered on remand.”
We reject this view of the trial court’s ruling. We note that the modified waiver
was originally scheduled to expire in 2017. Thus, a replacement may well be on the
horizon. Consequently, it is appropriate that the Regional and State Boards be open to
considering new material, such as the report of the expert panel and any new reports from
other experts. We find no error in this aspect of the ruling.
32
B. CEQA Review
Coastkeeper alleged the State Board had violated CEQA by failing to undertake
any environmental review of the modifications to the 2012 waiver. The State Board
demurred to this cause of action on the basis that Coastkeeper had failed to exhaust
administrative remedies on this issue. The trial court did not specifically rule on the
demurrer, but did find it possible “some additional environmental review was required.”
The court directed the State Board on remand to consider what supplemental
environmental review was required to comply with CEQA. The State Board contends the
trial court erred in failing to rule on its demurrer and argues strenuously no further CEQA
review was required. It further objects that the court is opening remand to a
reconsideration of “everything else Coastkeeper wanted.”
When changes are made to a project, such as the State Board’s modifications to
the 2012 waiver, the agency making the modifications must determine whether the initial
environmental document remains sufficient or whether revisions to that document or
supplemental review is required. (Friends of the College of San Mateo Gardens v. San
Mateo County Community College District (2016) 1 Cal.5th 937, 952-953.) The trial
court merely directed compliance with this requirement, and did not err in so doing.
33
DISPOSITION
The judgment is modified to provide that a writ of mandate shall issue
commanding the State Board to commence further proceedings as appropriate to
formulate a new or modified waiver under Water Code section 13269 or another program
that satisfies the waste discharge requirements of the Water Code and applicable state
water policies, consistent with this opinion. The parties shall bear their own costs of
appeal. (Cal. Rules of Court, rule 8.278(a).)
/s/
Duarte, J.
We concur:
/s/
Robie, Acting P.J.
/s/
Murray, J.
34
Filed 10/17/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
MONTEREY COASTKEEPER et al., C080530
Plaintiffs and Respondents, (Super. Ct. No. 34-2012-
80001324-CU-WM-GDS)
v.
ORDER CERTIFYING
STATE WATER RESOURCES CONTROL OPINION FOR
BOARD, PUBLICATION
Defendant and Appellant; [NO CHANGE IN
JUDGMENT]
GROWER-SHIPPER ASSOCIATION OF
CALIFORNIA et al.,
Interveners and Appellants.
1
THE COURT:
The opinion in the above-entitled matter filed September 18, 2018, was not
certified for publication in the Official Reports. For good cause it appears now that the
opinion should be published in the Official Reports and it is so ordered.
BY THE COURT:
/s/
Robie, Acting P. J.
/s/
Murray, J.
/s/
Duarte, J.
2
EDITORIAL LISTING
APPEAL from a judgment of the Superior Court of Sacramento County,
Timothy M. Frawley, Judge. Affirmed as modified with directions.
Somach Simmons & Dunn, Theresa A. Dunham and Theresa C. Barfield for
Intervenors and Appellants Grower-Shipper Association of Central California; Grower-
Shipper Association of Santa Barbara and San Luis Obispo Counties, and Western
Growers Association.
California Farm Bureau Federation, Nancy N. McDonough and Kari E. Fisher for
Intervenor and Appellant California Farm Bureau Federation.
Xavier Becerra, Attorney General, Robert W. Byrne, Senior Assistant Attorney
General, Tracy L. Winsor, Supervising Deputy Attorney General, Matthew J. Goldman
and Emel G. Wadhwani, Deputies Attorney General for Defendant and Appellant State
Water Resources Control Board.
Environmental Law Clinic, Deborah A. Sivas, Alicia E. Thesing, John Ugai,
Duncan Pickard; Environmental Law and Justice Clinic, Helen H. Kang, Tovah
Trimming, Collin McCarthy, and M. Tyler Sullivan for Plaintiffs and Respondents
Monterey Coastkeeper, a program of The Otter Project, a non-profit organization, San
Luis Obispo Coastkeeper, California Sportfishing Protection Alliance, and Santa Barbara
Channelkeeper.
3