California court rules state board must revise waiver in water code regarding agriculture discharge

Article from Legal NewsLine.

By Takesha Thomas
Oct 30, 2018

A group of environmental entities has won an appeal in a case involving the state of California’s water code.

On Oct. 17, the California Court of Appeal 3rd Appellate District of Sacramento sided with Monterey Coastkeeper, San Luis Obispo Coastkeeper, California Sportfishing Protection Alliance and Santa Barbara Channelkeeper in the appeal.

The group had submitted a petition for a writ of mandate in reference to a modified waiver in the state’s water code approved by the State Water Resources Control Board. The matter involves a challenge to a Section 13269 waiver of waste discharge requirements for irrigated agricultural land. The plaintiffs allege the waiver did not meet Water Code requirements and state water policies.

The appellate court modified the trial court’s judgment and required 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 ruling states.

The State Water Resources Control Board and nine regional boards are responsible for regulating waste discharges to protect water quality in California, according to the ruling.

The plaintiffs filed the petition in April 2012 alleging that the state’s modification to the waiver violated Section 13269 “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,” the ruling states.

The plaintiffs also contend that “the modified waiver violated the anti-degradation 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 by failing to consider supplemental environmental review,” the ruling states.

According to the ruling, the Central Coast Regional Water Quality Control Board issued a “waiver of discharge requirements for irrigated agricultural operations in the region.” The defendant state board then modified the waiver and adopted it at its meeting on September 2013.

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,” the ruling states.

The plaintiffs objected that the Tier 3 standard arguing in part that, “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,” the ruling states.

Judges Elena Duarte, Ronald Robie and William Murray Jr. concurred in the ruling.

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