In Los Angeles Waterkeeper v. State Water Assets Management Board, the Second District of the California Courtroom of Enchantment thought-about whether or not the State and Regional Water Boards have an obligation below California Structure, the California Water Code and/or the California Environmental High quality Act (CEQA) to evaluate wastewater discharge permits previous to granting approval of the permits. The trial court docket held that the State Water Assets Management Board (State Water Board) did have an obligation to guage whether or not the quantity of wastewater being discharged was cheap earlier than issuing a allow. Nevertheless, the court docket discovered that the Regional Water High quality Management Board, Los Angeles Area (Regional Water Board) didn’t have an analogous responsibility, as a result of the reasonability evaluation of a discharge is carried out on the state degree and the Regional Water Board’s authority is restricted to assessing water high quality. On attraction, the Second District affirmed the judgments of dismissal in favor of the Regional Water Board and reversed the judgments and writs of mandate in opposition to the State Water Board (together with the award of attorneys’ charges). Each courts held that CEQA evaluate was not triggered by the issuance of the permits, as a result of wastewater permits are exempt from CEQA evaluate below the Water Code. This case sheds gentle on how California courts perceive the position of the State and Regional Water Boards with regard to their statutory and constitutional duties.
Factual Background and Procedural Historical past
In 2017, the Regional Water Board renewed permits permitting 4 publicly-owned therapy works (POTWs) to discharge thousands and thousands of gallons of handled wastewater day by day into the Los Angeles River and the Pacific Ocean. Environmental NGO Los Angeles Waterkeeper (LA Waterkeeper) sought evaluate of the permits earlier than the State Water Board and the State Water Board declined evaluate.
LA Waterkeeper then filed petitions for writs of mandate in opposition to each the State and Regional Water Boards, naming the cities that owned the 4 POTWs as actual events in curiosity. LA Waterkeeper argued that the Boards have an obligation below each the Water Code and article X, part 2 of the California Structure to stop the waste and unreasonable use of water and that the Boards violated this responsibility by failing to guage the discharge permits (to see if the portions discharged had been cheap, whether or not the water could possibly be recycled or in any other case put to higher use, and so on.) earlier than approving the permits. LA Waterkeeper additional alleged that the Regional Water Board issued the permits with out conducting the required CEQA findings.
The Boards demurred to the petitions, arguing that the Structure and the Water Code imposed no responsibility, and that wastewater discharge permits had been exempt from CEQA below Water Code part 13389.
The trial court docket overruled the demurrer as to the State Water Board, discovering the State Water Board had a constitutional and statutory responsibility to stop the waste of water. The trial court docket discovered that the big discharges from the POTWs had been sufficient to set off this responsibility and that subsequently the State Water Board erred in failing to guage whether or not the discharges had been cheap. The trial court docket clarified that it couldn’t require the State Water Board to meet its responsibility in a selected manner, however that mandamus would compel the Board to take some motion. The court docket subsequently issued 4 judgments and 4 writs of mandate directing the State Water Board to guage whether or not the discharges from every of the 4 POTWs had been cheap.
The trial court docket sustained demurrer as to the Regional Water Board, discovering that the Regional Water Board’s responsibility was not triggered given the connection between the State and Regional Water Boards. The court docket defined that the Regional Water Board was solely chargeable for water high quality (as in, guaranteeing the water below its purview is free from air pollution) and the Regional Water Board didn’t have the authority to require the POTWs to recycle extra wastewater. With regard to CEQA, the trial court docket held that the availability of CEQA exempting wastewater discharge permits was meant to reflect federal legislation, the place your entire wastewater discharge allow is exempted from NEPA evaluate.
Courtroom of Enchantment Evaluation
On attraction, the Second District agreed with the trial court docket that the Regional Water Board had no responsibility to guage the reasonableness of the POTW discharges as a result of the Regional Water Board’s authority is restricted to water high quality, not cheap use.
As to the State Water Board, the court docket decided that LA Waterkeeper didn’t adequately plead entitlement to mandamus in opposition to the State Water Board and that subsequently the trial court docket ought to have sustained the Board’s demurrer. The court docket additional discovered that no matter responsibility the State Water Board has to stop the unreasonable use of water is “extremely discretionary” and that “nothing in [the California Constitution] or the Water Code requires the State Board to take motion in opposition to any specific occasion of unreasonable use or class of unreasonable use.” The court docket of attraction chastised the decrease court docket for categorizing the POTW discharges as “distinctive” and subsequently deserving of evaluate: the Second District discovered that uniqueness was neither “supported by the language of the Structure or the Water Code” nor a “workable authorized commonplace.” The court docket of attraction concluded by writing that “[t]he Legislature has opted to not embrace an affordable use evaluation as a part of the wastewater discharge allowing course of, and we won’t override that willpower.”
With regard to CEQA, the Second District declined to evaluate whether or not Water Code part 13389 absolutely exempted the Regional Water Board from conducting a CEQA evaluation previous to issuing wastewater discharge permits. As a substitute, the court docket restricted itself to the part of CEQA that LA Waterkeeper pleaded (Public Assets Code part 21002) and located that that part doesn’t impose environmental evaluate necessities however as an alternative states a coverage associated to CEQA’s environmental evaluate process. The court docket discovered that as a result of Water Code part 13389 exempts wastewater discharge allowing from CEQA procedures, Public Assets Code part 21002 didn’t apply.
The result of LA Waterkeeper makes clear that regional water boards don’t have an obligation to evaluate the reasonableness of wastewater discharge permits and whereas the State Water Board has an obligation to keep away from water waste the place attainable, it retains a excessive degree of discretion in the way it workouts that responsibility: particular cases of discharge are subsequently largely insulated from judicial evaluate. This case additionally explains that Public Assets Code part 21002 is exempted by Water Code part 13389, though the extent to which native companies are utterly exempted from CEQA evaluation when issuing wastewater discharge permits was not absolutely addressed.
