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March 7, 2023  |  Written by Michelle E. Chester

California Court of Appeal Holds that State Water Board Is Not Required to Investigate Whether Permitted Wastewater Discharges Amounts to Waste and Unreasonable Use

On February 27, 2023, the Court of Appeal for the Second Appellate District (Court of Appeal) affirmed in part and reversed in part the Los Angeles Superior Court’s decision in Los Angeles Waterkeeper v. State Water Resources Control Board, et al., Case No. BS171009. Somach Simmons & Dunn filed an amici curiae brief on behalf of the California Association of Sanitation Agencies, Association of California Water Agencies, and WateReuse Association informing the Court of Appeal of the unintended consequences of the rule issued by the trial court, which found that California Constitution Article X, section 2 imposed a duty on the State Water Resources Control Board (State Water Board) to prevent the waste of permitted wastewater discharges.

The lawsuit was initiated after the Los Angeles Regional Water Quality Control Board (Regional Board) renewed the wastewater discharge permits of four publicly owned treatment works (POTWs) that discharge treated wastewater into the Los Angeles River and Pacific Ocean. Los Angeles Waterkeeper (Waterkeeper) petitioned the State Water Board for review of the permits. After the State Water Board declined to review, Waterkeeper filed four petitions for writ of mandate—one for each of the POTWs—against the State Water Board and the Regional Board, claiming each had a nondiscretionary duty under Article X, section 2 of the California Constitution to prevent the waste and unreasonable use of water when issuing wastewater discharge permits.

The State Water Board and the Regional Board demurred to all four writ petitions, arguing Waterkeeper had not pled facts sufficient to state a claim because there is no such duty on the Regional Board when issuing wastewater discharge permits and because there is no requirement that the State Water Board investigate every allegation of waste or unreasonable use of water. The trial court sustained the Regional Board’s demurrer but overruled the State Water Board’s demurrer. The trial court granted Waterkeeper’s writ against the State Water Board, reasoning that the State Water Board had a duty to consider whether the large amount of wastewater collectively discharged by the four permitted POTWs amounted to waste or unreasonable use of water.

Amici curiae reiterated the legal arguments of parties opposing Waterkeeper’s appeal on the grounds that the duty the trial court imposed on the State Water Board was not lawful. Notably, however, amici curiae also raised arguments rooted in policy that warranted reversal of the trial court’s decision as to the State Water Board, including that the trial court’s rule would not result in an improvement to existing policies and programs aimed at increasing water recycling. Amici curiae argued that, if the State Water Board did have a duty to consider the reasonableness of POTW discharges, the trial court’s vague expression of the Board’s duty gave regulated entities no way of knowing when, how, or under what circumstances the State Water Board would or was authorized to investigate wastewater operations to determine whether permitted discharges amount to waste or unreasonable use. Moreover, amici curiae noted that the trial court’s decision was based solely on consideration of the authority, operation, and discharges of four particular POTWs, without recognizing that other wastewater facilities are comparatively limited in their legal and physical capacity to reduce discharges.

The Court of Appeal reversed the trial court decision as to the State Water Board’s mandatory duty and affirmed the trial court’s decision that the Regional Board does not have a duty to prevent the unreasonable discharge in permitting POTWs. The court held that Waterkeeper could not state a cause of action for mandamus to require the State Water Board to exercise its discretion to perform a reasonable use analysis for wastewater treatment plants. Moreover, the court concluded that a mandatory duty would improperly expand the State Water Board’s constitutional and statutory authority to evaluate the reasonableness of wastewater discharges.

For more information on the decision, or on water quality related matters generally, please contact:

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