Environmental Law Foundation v. State Water Resources Control Bd. (2023) · DecisionDepot

Environmental Law Foundation v. State Water Resources Control Bd.

Name: California Superior Court Tentative Rulings
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California Court of Appeal Mar 17, 2023 No. C093513Published

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Holding. The court affirmed the trial court's denial of petitions for writs of mandate challenging the State Water Board's Order WQ 2018-0002, holding that the Order's regulatory framework for irrigated agricultural discharges complies with the Nonpoint Source Policy and the Antidegradation Policy.

Issues

Whether the Order violates the Nonpoint Source Policy regarding data secrecy, feedback mechanisms, and recordkeeping.
Whether the Order violates the Nonpoint Source Policy by failing to describe specific management practices.
Whether the Order violates the Antidegradation Policy by failing to make required findings and improperly distinguishing prior case law.

Disposition. Affirmed.

Quotations verified verbatim against the opinion

“The Order authorizes discharges from irrigated lands to waters of the state within the Eastern San Joaquin River Watershed (watershed) and assigns monitoring and reporting responsibilities to the Coalition and growers”

“We will reject these arguments and affirm the judgments.”

Filed 3/17/23 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

ENVIRONMENTAL LAW FOUNDATION, C093513

Plaintiff and Appellant, (Super. Ct. No. 34201880002851CUWMGDS) v.

STATE WATER RESOURCES CONTROL BOARD,

Defendant and Respondent;

EAST SAN JOAQUIN WATER QUALITY COALITION,

Real Party in Interest and Respondent;

SAN JOAQUIN COUNTY RESOURCE CONSERVATION DISTRICT et al.,

Interveners and Respondents.

PROTECTORES DEL AGUA SUBTERRANEA,

Plaintiff and Appellant, (Super. Ct. No. 34201880002852CUWMGDS) v.

STATE WATER RESOURCES CONTROL BOARD,

Defendant and Respondent;

CENTRAL VALLEY REGIONAL WATER QUALITY CONTROL BOARD et al.,

Real Parties in Interest and Respondents;

SAN JOAQUIN COUNTY RESOURCE CONSERVATION DISTRICT et al.,

Interveners and Respondents.

MONTEREY COASTKEEPER et al.,

Plaintiffs and Appellants, (Super. Ct. No. 34201880002853CUWMGDS) v.

STATE WATER RESOURCES CONTROL BOARD et al.,

Defendants and Respondents;

EAST SAN JOAQUIN WATER QUALITY COALITION et al.,

Interveners and Respondents.

APPEAL from judgments of the Superior Court of Sacramento County, Steven M. Gevercer, Judge. Affirmed.

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Protectores argues the Order violates resolution No. 68-16, statement of policy with respect to maintaining high quality of waters in California, also known as the antidegradation policy (the Antidegradation Policy) because the State Water Board and Central Valley Water Board: (1) failed to make required findings; and (2) improperly distinguished the opinion of another panel of this court in Asociacion de Gente Unida por el Agua v. Central Valley Regional Water Quality Control Bd. (2012) 210 Cal.App.4th 1255 (AGUA). We will reject these arguments and affirm the judgments. II. BACKGROUND A. Statutory and Regulatory Framework The Porter-Cologne Water Quality Control Act (Act) (§ 13000 et seq.) governs water quality regulation in California. The Act establishes as state 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 Act is administered by the State Water Board and nine regional water quality control boards (Regional Boards), including the Central Valley Water Board. (§§ 13001, 13200.) The State Water Board formulates statewide water quality control policies and oversees the Regional Boards. (§§ 13100, 13140-13141, 13146, 13200-13201, 13240.) Together, the State Water Board and Regional Boards are charged with “primary responsibility for the coordination and control of water quality.” (§ 13001.) 1. Basin Plans and Waste Discharge Requirements Regional Boards formulate water quality control plans for their regions, commonly known as “basin plans.” (§§ 13240, 13245; see also Monterey Coastkeeper v. California Regional Water Quality Control Board (2022) 76 Cal.App.5th 1, 8 (Monterey Coastkeeper II).) Basin plans must specify, for the waters within the region, the

fertilize crops, irrigation to water crops—also underlie many of its critical impacts.” Regulatory programs aimed at reducing nonpoint source pollution “ ‘typically depend, at least in part, upon discharger implementation of management practices (MPs) to control nonpoint sources of pollution.’ ” (Monterey Coastkeeper I, supra, 28 Cal.App.5th at p. 349.) 2. State Water Policies Basin plans must be consistent with “state policy for water quality control.” (§ 13240; Monterey Coastkeeper I, supra, 28 Cal.App.5th at p. 349.) As indicated above, two such policies are relevant here: the Nonpoint Source Policy and the Antidegradation Policy. We provide an overview of each policy here, adding greater detail in the analysis to come. a. The Nonpoint Source Policy The Act requires that the State Water Board “prepare a detailed program for the purpose of implementing the state’s nonpoint source management plan.” (§ 13369, subd. (a).) The State Water Board adopted the Nonpoint Source Policy in May 2004 in response to this directive. (Monterey Coastkeeper II, supra, 76 Cal.App.5th at p. 9; Cal. Code Regs., tit. 23, § 2915.) The Nonpoint Source Policy provides guidance for structuring nonpoint source pollution control implementation programs to achieve water quality objectives. The Nonpoint Source Policy recognizes that the challenges to implementing such programs are “significant.” The Nonpoint Source Policy explains: “Current land use management practices that have resulted in [nonpoint source] pollution have a long and complicated physical, economic and political history. In addition to the need for resources, forging a new history of pollution control will take time and commitment, as well as a willingness to examine the use of practices that have resulted in current [nonpoint source] pollution discharges and the barriers to change. Therefore, it is expected that it will take a significant amount of time for the [Regional Boards] to approve or endorse [nonpoint

source] control implementation programs throughout their regions, and even longer for those programs to achieve their objectives.” The Nonpoint Source Policy encourages Regional Boards to be “as creative and efficient as possible in devising approaches to prevent or control [nonpoint source] pollution.” The Nonpoint Source Policy emphasizes that Regional Boards “have broad flexibility and discretion in using their administrative tools to fashion [nonpoint source] management programs,” and approves reliance on third-party programs to “avoid unnecessary duplication of effort” and leverage the State and Regional Water Boards’ limited staffing and financial resources. The Nonpoint Source Policy requires that nonpoint source control implementation programs incorporate five key elements. (Monterey Coastkeeper I, supra, 28 Cal.App.5th at p. 349.) The key elements are as follows: “KEY ELEMENT 1: [A nonpoint source] control implementation program’s ultimate purpose shall be explicitly stated. Implementation programs must, at a minimum, address [nonpoint source] pollution in a manner that achieves and maintains water quality objectives and beneficial uses, including any applicable antidegradation requirements.” “KEY ELEMENT 2: [A nonpoint source] control implementation program shall include a description of the [management practices] and other program elements that are expected to be implemented to ensure attainment of the implementation program’s stated purpose(s), the process to be used to select or develop [management practices], and the process to be used to ensure and verify proper [management practice] implementation.” “KEY ELEMENT 3: Where a [Regional Board] determines it is necessary to allow time to achieve water quality requirements, the [nonpoint source] control implementation program shall include a specific time schedule, and corresponding quantifiable milestones designed to measure progress toward reaching the specified requirements.”

new—so new, in fact, that “[t]here is insufficient information currently available to calculate the R value for most crops.” The Order directs the Coalition to develop coefficients for calculating nitrogen removed by crop and publish them for crops covering 99 percent of all acreage in the watershed by March 2023. The Order directs Members to record AR data in irrigation and nitrogen management plans, and report the data to the Coalition in irrigation and nitrogen management plan summary reports. 9 The Order directs the Coalition to calculate A/R ratio and A-R difference for each Member and each field and report the results to the Central Valley Water Board. The Coalition reports Members’ AR data in anonymized form, similar to the reporting of information from farm evaluations. The Order explains that some Members view AR data—specifically, total nitrogen applied (A)—as confidential and proprietary. The Order expresses skepticism on this point, noting that “the timing and frequency of nitrogen applications, rather than data regarding the total amount, [is] more likely to implicate competitive business practices.” The Order also questions whether “the maintenance of confidentiality, in and of itself, is a legitimate goal of a regulatory program that must have transparency and accountability to the public.” Despite these reservations, the Order acknowledges that “many growers have varying levels of business sophistication, limited experience with regulatory programs, and a reluctance to disclose data that they have never before disclosed to the public.” In recognition of these privacy concerns, the Order concludes the State Water Board should “proceed cautiously at this time and not require more information than we find is necessary to effectively manage the irrigated lands regulatory program and provide the public with the essential assurance that we are doing so.” The Order further concludes that “the goals of the program can be carried out effectively if field-level data

We exercise our independent judgment in interpreting administrative regulations, such as the Nonpoint Source and Antidegradation Policies. (AGUA, supra, 210 Cal.App.4th at p. 1267-1268.) We accord an administrative agency’s interpretation of its own regulation considerable weight and deference unless the interpretation is unauthorized or clearly erroneous. (Lusardi Construction Co. v. California Occupational Safety & Health Appeals Board (1991) 1 Cal.App.4th 639, 645.) We extend such deference, however, “only where the administrative agency has an interpretive advantage over the court because of the scientific and technical nature of the issues.” (AGUA, supra, at p. 1268.) We will not defer to an agency 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 Board (2003) 109 Cal.App.4th 1089, 1104.) The Order may comply with the Nonpoint Source Policy or Antidegradation Policy if the State Water Board made the requisite findings. (AGUA, supra, 210 Cal.App.4th at p. 1268.) A trial court exercises its independent judgment to determine whether the State Water Board’s factual findings are supported by the weight of the evidence. (§ 13330, subd. (e); see also AGUA, supra, at p. 1267 [“In cases in which the court is authorized to exercise its independent judgment on the evidence, ‘abuse of discretion is established if the court determines that the findings are not supported by the weight of 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 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.) We review the trial court’s factual determinations on the administrative record for substantial evidence. (Building Industry Assn. of San Diego County v. State Water Resources Control Board (2004) 124 Cal.App.4th 866, 879; Fukuda v. City of Angels,

supra, 20 Cal.4th at p. 824 [“Even when, 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”]; AGUA, supra, 210 Cal.App.4th at p. 1267 [“on appeal from the decision of a trial court that exercises its independent judgment on the evidence, review of the factual determinations of the trial court is limited to substantial evidence”].) “In reviewing the findings, we must determine both whether the weight of the evidence supports the findings, and whether the findings support the decision.” (AGUA, supra, at p. 1268.) B. The Foundation’s Appeal The Foundation argues the Order fails to implement the Nonpoint Source Policy in the manner required by law. Specifically, the Foundation argues the Order violates key element four, which requires that nonpoint source control implementation programs include “sufficient feedback mechanism[s]” so the Regional Boards and public can determine whether the programs are achieving their stated purposes. According to the Foundation, the Order violates key element four by: (1) keeping data secret; (2) failing to provide sufficient feedback mechanisms; and (3) failing to require permanent recordkeeping. We consider and reject each of these arguments below. 1. Anonymization of Data The Foundation’s first argument focuses on the Order’s requirements for farm evaluations and nitrogen management plan summary reports. As previously discussed, the Order requires that Members report management practice implementation data in farm evaluations, and AR data in nitrogen management plan summary reports. The Coalition then aggregates and anonymizes the data for submission to the Central Valley Regional Board. The Foundation argues the anonymization of data allows Members to keep data secret, in violation of key element four. We perceive no violation. We should clarify what we mean by “key element four.” As we have explained, key element four is one of five key elements in the Nonpoint Source Policy. Each key

element appears with one or two sentences of underlined text, followed by several paragraphs of non-underlined text. For example: “KEY ELEMENT 4: [A nonpoint source] control implementation program shall include sufficient feedback mechanisms so that the [Regional Board], dischargers, and the public can determine whether the program is achieving its stated purpose(s), or whether additional or different [management practices] or other actions are required. “Verification measures to determine whether [a nonpoint source] control implementation program is meeting its stated purpose is a key element of all [nonpoint source] control implementation programs. In additional to verification of proper [management practice] implementation (Key Element 2), feedback mechanisms are needed to clearly indicate whether and when additional or different [management practices] or [management practice] implementation measures must be used, or other actions taken. Designing the appropriate types and frequency of verification and feedback measures (e.g.[,] reporting, inspection, monitoring, etc.) is an integral part of implementation program development and success. “In all cases the [nonpoint source] control implementation program should describe the measures, protocols, and associated frequencies that will be used to verify the degree to which the [management practices] are being properly implemented and are achieving the program’s objectives, and/or to provide feedback for use in adaptive management. These efforts are necessary to determine whether the program is on time and on track in achieving its goals. “Depending on the water quality problem, the cause, the beneficial uses at risk, and the purpose for which the monitoring will be used (e.g.[,] adaptive management or regulatory purposes) the appropriate type(s) of monitoring should be used. Some monitoring approaches include photo monitoring; assessing residual dry matter on rangelands; various indicators of healthy instream habitat; riparian and wetland habitat structure, density and cover; and bioassessment. Some programs may involve collecting

insufficient. The Foundation finds support for this argument in the Order’s statement of ultimate purpose, which the Foundation characterizes as “individual compliance” with receiving water limitations. Building on this premise, the Foundation reasons that compliance must be individual and site specific; therefore, feedback mechanisms must also be individual and site specific. We disagree for two reasons. First, the Foundation misstates the Order’s ultimate purpose. The Order does not express an ultimate purpose of “individual compliance.” Rather, the Order says its ultimate purpose is establishing receiving water limitations so “[w]astes discharged from Member operations shall not cause or contribute to an exceedance of applicable water quality objectives.” The Order holds Members individually responsible for complying with receiving water limitations, but also recognizes the current state of science does not allow regulators to say with certainty that any particular Member has or has not caused or contributed to any particular exceedance. Accordingly, the Order aims to improve water quality outcomes for “Member operations” through implementation of management practices, monitoring, and reporting, rather than “individual compliance.” That purpose is narrower than the one the Foundation describes. Second, and related, the findings support the State Water Board’s decision that the Order contains sufficient feedback mechanisms to allow the Central Valley Water Board and public to determine whether the program is achieving its ultimate purpose. As previously discussed, Table 1 discloses implemented management practices at the field- level by Anonymous Member ID. Table 2 discloses field-level AR data by Anonymous Member ID. Neither Table 1 nor Table 2 disclose the location of the field. Nevertheless, the Central Valley Water Board and public can correlate implemented management practices to wastes discharged from Member operations by Anonymous Member ID. Because Anonymous Member IDs are permanently assigned, the Central Valley Water

The Foundation also argues the findings do not support the State Water Board’s decision because the Order grants the Central Valley Water Board greater access to information than the public. According to the Foundation, key element four requires that the Central Valley Water Board and the public have equal access to such information. We are not persuaded. Key element four requires that the Order provide “sufficient feedback mechanisms,” not perfect transparency. Nothing in key element four says the public must have access to the same data set as the Central Valley Water Board. The Foundation makes much of the fact that the State Water Board found it “essential to continue to allow the Central Valley Water Board to require submittal of specific names or locations, or names or locations generally, should the Central Valley Water Board make a determination that it is necessary.” If the ability to access the complete data set is “essential” for the Central Valley Water Board, the Foundation urges, then the same must be true for the public. But the Central Valley Water Board and the public are not similarly situated with respect to water quality regulation. Moreover, and more importantly, the Nonpoint Source Policy does not require that the public have the same feedback mechanisms as the Central Valley Water Board, only that both have “sufficient” ones. As we have shown, the trial court’s finding that the Order provides sufficient feedback mechanisms is supported by substantial evidence, including evidence that individualized data points are “typically problematic.” We cannot say that the Order’s feedback mechanisms are insufficient as a matter of law merely because they do not provide the public with the same regulatory tools as the Central Valley Water Board. The Foundation’s second argument is rejected. 3. Permanent Recordkeeping Finally, the Foundation argues the Order violates key element four by failing to require permanent recordkeeping. The commentary to key element four provides, in pertinent part, that, “all monitoring programs should . . . provide a

permanent/documented record.” The Foundation argues the Order violates the commentary by only requiring that Members and the Coalition maintain records reflecting field-level management practice implementation data and AR data for 10 years. As before, we perceive no violation. Here, again, the commentary says only that monitoring programs “should . . . provide a permanent/documented record,” not that they must. (See, e.g., Kucera v. Lizza, supra, 59 Cal.App.4th at p. 1152; Boam v. Trident Financial Corp., supra, 6 Cal.App.4th at p. 745, fn. 6; United States v. Marcucci, supra, 299 F.3d at p. 1159.) The commentary does not mandate that the Order provide a permanent or documented record of the monitoring program, but instead leaves the matter to the State Water Board’s discretion. The State Water Board could reasonably exercise that discretion to require that Members and the Coalition maintain records of field-level management practice implementation data and AR data for 10 years, rather than permanently, given the evidence that aggregated and anonymized data provides a sufficient feedback mechanism, and individualized data points are not helpful. We cannot say that the Order’s recordkeeping requirements fly in the face of the Nonpoint Source Policy. Accordingly, we reject the Foundation’s third and final argument. C. Coastkeeper’s Appeal Coastkeeper’s appeal also focuses on the Nonpoint Source Policy. Coastkeeper argued in the trial court that the Order violates every element of the Nonpoint Source Policy, as well as the Antidegradation Policy. Coastkeeper now argues that the Order violates key elements two and four of the Nonpoint Source Policy. We reject these contentions for the reasons discussed below. 1. Key Element Two Coastkeeper argues the Order violates key element two of the Nonpoint Source Policy. Key element two requires that nonpoint source control implementation programs “include a description of the [management practices] and other program elements that are

expected to be implemented to ensure attainment of the implementation program’s stated purpose(s).” (Emphasis omitted.) The commentary to key element two provides: “A [Regional Board] must be able to determine that there is a high likelihood that the program will attain water quality requirements. This will include consideration of the [management practices] to be used and the process for ensuring their proper implementation. It also will include other factors such as the level of discharger participation and the effectiveness of the [management practices] implemented. “[Management practices] must be tailored to a specific site and circumstances, and justification for the use of a particular category or type of [management practice] must show that the [management practice] has been successfully used in comparable circumstances. If [a management practice] has not previously been used, documentation to substantiate its efficacy must be provided by the discharger. A [Regional Board] must be convinced there is a high likelihood the [management practice] will be successful. A schedule assuring [management practice] implementation and assessment, as well as adaptive management provisions must be provided. We recognize that in the earlier stages of some pollution control programs, water quality changes may not be immediately apparent, even with the implementation of pollution control actions. Although [management practice] implementation never may be a substitute for meeting water quality requirements, [management practice] implementation assessment may, in some cases, be used to measure nonpoint source control progress.” Coastkeeper argues the Order violates key element two in two ways. First, Coastkeeper argues the Order fails to include a description of the management practices expected to be implemented to ensure attainment of the program’s stated purposes. According to Coastkeeper, the Order gives the appearance of describing specific management practices, but actually offers “only reporting requirements, general instructions, and plans to make plans.” None of these things are management practices,

Coastkeeper says. Second, Coastkeeper argues that no evidence supports the finding that the activities required by the Order (whether or not they are management practices) are highly likely to attain water quality requirements. We reject both contentions. Coastkeeper argues the Order violates key element two by failing to describe specific management practices. But key element two applies to nonpoint source control implementation programs, not orders. As the State and Central Valley Water Boards observe, the Nonpoint Source Policy defines a nonpoint source control implementation program as “a program developed to comply with [State Water Board or Regional Water Board waste discharge requirements], waivers of [waste discharge requirements], or basin plan prohibitions.” Thus, the State and Central Valley Water Boards assert, the program logically includes both the Order and the contents of the plans that Members and the Coalition must prepare and implement to comply with the Order. This point is well- taken. We therefore consider whether the program as a whole satisfies key element two. We conclude it does. a. Description of Management Practices As previously discussed, the Order requires that Members “implement management practices that minimize waste discharge offsite in surface water, minimize percolation waste to groundwater, and protect wellheads from surface water intrusion.” Coastkeeper argues these are “[v]ague instructions to further general goals,” (italics omitted) and we do not disagree. But the Order does not stop there. The Order also requires that all Members prepare planning documents, beginning with farm evaluations, irrigation and nitrogen management plans, and sediment and erosion control plans. Farm evaluations are prepared with templates approved by the Central Valley Water Board. The templates call for Members to check boxes identifying implemented management practices, including pesticide application practices, primary and secondary irrigation practices, irrigation efficiency practices, nitrogen management practices, and

management practices to the Coalition’s discretion. As such, Coastkeeper contends, surface water quality management plans and groundwater quality management plans cannot be considered management practices either. We disagree. When the program is viewed as encompassing both the Order and planning and reporting activities required by the Order, it becomes clear that the program as a whole includes an adequate “description of the [management practices] and other program elements that are expected to be implemented to ensure attainment of the implementation program’s stated purpose(s).” (Emphasis omitted.) As previously discussed, the Order requires that Members implement management practices and prepare certified records specifying which management practices have already been implemented and which are expected to be implemented. Together, the Order and planning and reporting activities required by the Order describe the management practices and other program elements that are expected to be implemented, thereby satisfying key element two. Coastkeeper directs our attention to the commentary to key element two, which require that management practices “be tailored to a specific site and circumstances.” However, all of the above-described plans and reports—farm evaluations, irrigation and nitrogen management plans, irrigation and nitrogen summary reports, sediment and erosion control reports, surface water quality management plans, and groundwater quality management plans—require that Members consider management practices at field level. That being so, we conclude that management practices are ”tailored to a specific site and circumstances,” as required by the commentary to key element two. Coastkeeper also directs our attention to section 13360, which provides, in pertinent part: “No waste discharge requirement or other order of a regional board or the state board or decree of a court issued under this division shall specify the design, location, type of construction, or particular manner in which compliance may be had with that requirement, order, or decree, and the person so ordered shall be permitted to comply with the order in any lawful manner.” (§ 13360, subd. (a).) Another panel of this court

b. Sufficiency of Evidence to Support a “High Likelihood” Finding Coastkeeper argues the program violates key element two in another way. The commentary to key element two provides, in part, that a Regional Board “must be able to determine that there is a high likelihood that the program will attain water quality requirements.” The trial court found the Order provides “a clear link between management practices and outcomes.” Coastkeeper argues the trial court’s finding is not supported by substantial evidence. We disagree. The trial court found evidentiary support for a “high likelihood” finding in the Order’s three-part structure. As previously discussed, the Order contemplates that: (1) all Members will immediately implement management practices and report those practices to the Coalition through farm evaluations, irrigation and nitrogen management summary reports, and management practice implementation reports; (2) some Members will implement additional management practices as part of a surface water quality management plan or groundwater quality management plan, or receive additional training as AR outliers; and (3) the Coalition will submit field-level data to the Central Valley Water Board, allowing the Central Valley Water Board to verify that Members are implementing management practices leading to improved multi-year A/R ratios or improved water quality results. Substantial evidence supports the trial court’s finding that the program is highly likely to attain water quality requirements. Irrigation and nitrogen management plans and irrigation and nitrogen management summary reports provide an apt illustration. The Order explains that irrigation and nitrogen management plans and irrigation and nitrogen summary reports are expected to improve water quality outcomes in two ways. First, irrigation and nitrogen management plans require that Members project the total nitrogen a given crop will require for a single cropping cycle. This is done by considering the amount of nitrogen already available in soil and irrigation water, which allows the Member to plan for the appropriate amount of fertilizer to be applied to meet crop requirements. Such planning helps Members avoid

over-application of nitrogen fertilizer that may lead to excess loss of nitrogen to groundwater or surface water. Second, the data contained in irrigation and nitrogen management summary reports enables the Coalition and Central Valley Water Board to consider the range of nitrogen application values reported for similar crops, and allows the Coalition to identify outliers for follow-up actions with the goal of reducing over- application. Thus, the Order anticipates that irrigation and nitrogen management plans will help Members avoid over-application of nitrogen, and irrigation and nitrogen management summary reports will help the Coalition and Central Valley Water Board identify outliers for follow-up. The State Water Board could reasonably expect these management practices would lead to improved water quality outcomes. Substantial evidence thus supports the existence of a link between management practices and water quality outcomes, which in turn supports a finding that the program is highly likely to attain water quality requirements. Coastkeeper challenges the sufficiency of the evidence, arguing no link can be inferred because the Order depends entirely on things the Coalition and Members may or may not do in the future (such as develop meaningful surface water quality management plans and groundwater quality management plans) rather than things they must do now. Coastkeeper directs our attention, again, to surface water quality management plans and groundwater quality management plans, which are required when water quality objectives are exceeded and irrigated agriculture may have caused or contributed to the exceedance. Coastkeeper argues the Order gives “unfettered discretion” to the Coalition to develop surface water quality management plans and groundwater quality management plans, and leaves the task of identifying management practices that will address the exceedance to the indefinite future. Coastkeeper suggests the Coalition cannot be relied upon to develop meaningful plans for Members, and Members cannot be trusted to regulate themselves. These arguments fail for several reasons.

First, surface water quality management plans and groundwater quality management plans are not as toothless as Coastkeeper suggests. True, they are developed by the Coalition, and the Coalition may not know in advance which management practices should be implemented to address which exceedances. But the Nonpoint Source Policy recognizes that management practice implementation must be iterative and adaptive, and the Order requires that surface water quality management plans and groundwater quality management plans identify management practices that will be used to control the exceedance and provide a specific schedule for implementing them. The Order further requires that surface water quality management plans and groundwater quality management plans be submitted to the Central Valley Water Board and approved by the executive officer following public review and comment. And the Order requires that Members comply with management plans once approved by the executive officer, and submit management practice implementation reports to the Coalition verifying that they have done so. The Coalition, for its part, must evaluate the Member’s implementation of management practices and assess their effectiveness in annual management plan progress reports to the Central Valley Water Board. Thus, surface water quality management plans and groundwater quality management plans are more than mere “plans to make a plan.” Second, Coastkeeper’s challenge to surface water quality management plans and groundwater quality management plans does not establish any insufficiency of the evidence. Ultimately, Coastkeeper argues the program cannot be considered highly likely to attain to water quality requirements because the Coalition cannot be counted on to develop meaningful surface water quality management plans and ground water quality management plans. However, the Nonpoint Source Policy encourages the State Water Board and Regional Boards to build upon third-party programs. That Coastkeeper may harbor doubts about the Coalition’s ability to regulate Members does not mean the trial

The General WDRs also call for “representative” monitoring. We understand the term “representative monitoring” to refer to monitoring that takes place at representative sites, rather than farm-specific sites. The State Water Board, in finding that receiving water monitoring is reliable and effective, implicitly recognized that some form of representative monitoring was also appropriate. (See Monterey Coastkeeper I, supra, 28 Cal.App.5th at p. 366 [“both . . . section 13269 and the [Nonpoint Source Policy] expressly allow the use of group or watershed monitoring”].) The Panel recommended that “sampling” of receiving waters “should be of sufficient density (spatially and temporally) to identify general locations of possible pollution.” “For example,” the Panel continued, “a single measurement point at the downstream discharge of a very large watershed would be insufficient.” But the Panel did not say what density of sampling would be sufficient. This was chief among the questions the State Water Board referred to the new expert panel. The State Water Board found the surface water monitoring program established by the General WDRs reflects “a studied decision by the Central Valley Water Board to balance the [Coalition’s] monitoring costs with the need to increase funds for management practice implementation.” (See § 13267, subd. (b) [“The burden, including costs, of [monitoring program reports] shall bear a reasonable relationship to the need for the report and the benefits to be obtained from the reports”].) The State Water Board further found the Central Valley Water Board’s representative monitoring approach “appears to have some merit” and “may be reasonable.” The State Water Board clearly believed the representative monitoring approach set forth in the General WDRs was appropriate (or sufficient) until the question of density (or scale) could be considered by the new expert panel. Thus, the State Water Board found that representative monitoring was appropriate, and monitoring should be “properly scaled” (in the trial court’s parlance) or “of sufficient density” (in the Panel’s). Substantial evidence thus supports the trial court’s finding that the State Water Board

“concluded that properly scaled representative monitoring was appropriate.” That the State Water Board referred the question of what constitutes “sufficient density” to another expert panel does not mean the surface water monitoring program was not appropriate (or sufficient) based on information available to the State Water Board at the time, and does not render the trial court’s finding unsupported by the evidence. We reject Coastkeeper’s argument. D. Protectores’ Appeal Unlike the Foundation and Coastkeeper, Protectores argues the Order violates the Antidegradation Policy, rather than the Nonpoint Source Policy. Specifically, Protectores argues: (1) the State Water Board’s maximum benefit finding either was not supported by substantial evidence or was contrary to the evidence; (2) the trial court failed to exercise independent judgment in concluding the weight of the evidence supported the finding; and (3) the State Water Board “improperly distinguished” AGUA. We address these contentions in turn. 1. The Maximum Benefit Finding As we have explained, the Antidegradation Policy requires that the State Water Board or Regional Board make findings that any change in water quality (1) will be consistent with the maximum benefit to the people of the state, (2) will not unreasonably affect beneficial uses, and (3) will not violate water quality standards. (AGUA, supra, 210 Cal.App.4th at p. 1260.) The trial court independently reviewed the administrative record and found the State Water Board made each of the required findings. Protectores challenges the evidence supporting the maximum benefit finding. Protectores argues the finding was not supported by substantial evidence or was contrary to the evidence because the State Water Board failed to consider costs to the public of discharges authorized by the Order, including treatment and health costs. We disagree. The Antidegradation Policy does not define “maximum benefit to the people of the state.” However, the State Water Board has discussed the maximum benefit finding in a

guidance memorandum. (State Water Board, Guidance Mem. (Feb. 16, 1995) (Guidance Memorandum).) The Guidance Memorandum, which was excerpted in AGUA, explains that maximum benefit determinations should be made on a case-by-case basis, with consideration given to various factors, including “ ‘economic and social costs, tangible and intangible, of the proposed discharge compared to the benefits.’ ” (AGUA, supra, 210 Cal.App.4th at p. 1279, quoting Guidance Mem. at pp. 4-5.) The trial court found the State Water Board made the maximum benefit finding, and the finding was supported by the weight of the evidence. Substantial evidence supports the trial court’s determination. The Order reveals that the State Water Board upheld the Central Valley Water Board’s maximum benefit finding, which was based on findings from an environmental impact report that was attached as an exhibit to the Order. That report includes findings that the state depends on central valley agriculture for food and central valley communities rely on agriculture for employment. The State Water Board observed that the Central Valley Water Board considered social costs of the discharges authorized by the Order and found the Order’s requirements “should ensure that local communities not incur any additional treatment costs.” The State Water Board also observed that the new monitoring program for drinking water supply wells would mitigate social costs by requiring that Members provide replacement water to affected communities. Accordingly, the State Water Board found “considerable societal benefits outweigh the costs associated with the effects of irrigated agriculture under the [Order],” and any degradation authorized by the Order “is consistent with the maximum benefit to the people of the state.” Substantial evidence supports the trial court’s determination that the State Water Board made the maximum benefit finding, and the finding was supported by the weight of the evidence. Protectores offers a different perspective. Protectores directs our attention to the following sentence from the Order’s discussion of the maximum benefit to the people of the state: “The Central Valley Water Board considered social costs of the discharges and

reasonably concluded that the General WDRs’ requirements to address all exceedances of water quality objectives according to the terms of a time schedule, implement best practicable treatment and control where irrigated agricultural waste discharges may cause degradation, and the inclusion of performance standards that work to prevent further degradation of surface and groundwater quality, should ensure that local communities not incur any additional treatment costs associated with the limited degradation authorized by the General WDRs.” (Emphasis added.) Protectores interprets the italicized language in the above-quoted sentence as a “finding that the public will incur no costs.” Protectores challenges the purported finding that “the public will not incur costs” at length. Protectores explains that discharges from irrigated agriculture are a primary cause of nitrate pollution, nitrates are dangerous in drinking water, many people rely on groundwater contaminated with nitrates for drinking water, treating contaminated water is costly, and the Order allows such discharges to continue. Protectores then concludes the State Water Board’s purported finding cannot be squared with the evidence. There are at least two problems with Protectores’ argument. First, Protectores invites us to make our own maximum benefit finding, placing greater weight on evidence of social costs than the State Water Board did, which we cannot do. Second, the State Water Board did not say the public would incur “no costs” associated with the degradation authorized by the Order. The State Water Board said the public should not incur “any additional treatment costs” associated with the degradation authorized by the Order. We see an obvious difference between the finding the State Water Board actually made and the one Protectores attributes to it. That the State Water Board found local communities would be unlikely to incur “any additional treatment costs” as a result of the degradation authorized by the Order does not mean they would incur “no costs,” as Protectores contends. It means only that local communities would be unlikely to incur additional costs, above and beyond those already being incurred. This much seems clear

served by groundwater wells, or communities which must pay for additional treatment of nitrate-contaminated groundwater. Protectores also suggests that because the order only requires township-level groundwater protection targets, groundwater monitoring will allow exceedances at ‘hot spots’ within communities that may go undetected. The Court does not doubt that such costs exist. However, Protectores bears the burden of demonstrating that the State Board did not appropriately consider these costs.” (Emphasis added.) Protectores seizes on the trial court’s statement that “such costs exist.” As Protectores reads the ruling, the trial court believed degradation authorized by the Order would cause local communities to incur costs, but deferred to the State Water Board’s purportedly contrary finding that they “would not incur additional treatment costs,” thereby abdicating its responsibility to exercise independent judgement. This argument fails for much the same reason as the last: Saying that social costs “exist” does not deny that “additional treatment costs”—i.e., treatment costs over and above the existing ones— are unlikely to become necessary. That no conflict exists between the trial court’s statement and the State Water Board’s finding is clear from the relevant sentence of the Order, which can be truncated as follows: “The Central Valley Water Board considered social costs of the discharges and reasonably concluded that the General WDRs’ requirements . . . should ensure that local communities not incur any additional treatment costs associated with the limited degradation authorized by the General WDRs.” The Order thus acknowledges that social costs “exist,” and were reasonably considered by both the Central Valley Water Board and State Water Board. Nothing suggests the trial court abdicated its responsibility to exercise independent judgment, and we will not assume the court misunderstood or misapplied the law. (People v. Jeffers (1987) 43 Cal.3d 984, 1000 [“It is generally presumed that a trial court has followed established law”].)

Finally, Protectores argues the State Water Board misinterpreted or misapplied AGUA. Apart from its challenge to the evidence supporting the maximum benefit finding (which we have already rejected), Protectores does not suggest the State Water Board failed to make any of the findings required by the Antidegradation Policy. Instead, Protectores suggests the State Water Board went wrong by distinguishing AGUA and conducting a “nontraditional” antidegradation analysis. This argument goes nowhere. AGUA concerned an order authorizing waste discharges from dairy farms in the Central Valley (dairy order). (AGUA, supra, 210 Cal.App.4th at pp. 1258-1259.) The Central Valley Water Board, in adopting the dairy order, found the Antidegradation Policy did not apply. (Id. at p. 1260.) The AGUA court disagreed. (Ibid.) The court then considered whether the dairy order complied with the Antidegradation Policy. (Id. at p. 1278.) Relying on the Guidance Memorandum, the AGUA court concluded that the Antidegradation Policy requires that Regional Boards make required findings as part of a “two-step process.” (AGUA, supra, 210 Cal.App.4th at p. 1278.) The court explained: “ ‘The first step is if a discharge will degrade high quality water, the discharge may be allowed if any change in water quality (1) will be consistent with maximum benefit to the people of the State, (2) will not unreasonably affect present and anticipated beneficial use of such water, and (3) will not result in water quality less than that prescribed in state policies (e.g.[,] water quality objectives in Water Quality Control Plans). The second step is that any activities that result in discharges to such high quality waters are required to use the best practicable treatment or control of the discharge necessary to avoid a pollution or nuisance and to maintain the highest water quality consistent with the maximum benefit to the people of the State.’ ” (Ibid., quoting Guidance Mem. at p. 2.) Protectores argues the State Water Board erred in distinguishing AGUA. However, the Order does not announce any departure from AGUA. The Order observes that the State Water Board “has, to date, provided relatively little specific direction to the

regional water boards on how to apply the Antidegradation Policy to nonpoint sources.” The Order continues: “We recently explained that a traditional antidegradation analysis for a discrete point source discharge has limited value when considering antidegradation in the context of storm water discharges from diffuse sources, conveyed through multiple outfalls, with multiple pollutants impacting multiple water bodies within a region.” The Order opines that the same practical considerations “make it inappropriate to apply a discrete point source discharge approach in the context of a general order regulating both surface water and groundwater discharges from irrigated agriculture operations across a large landscape.” The Order does not discuss AGUA, except to say “[t]he diffuse, landscape level groundwater discharges regulated under the . . . General WDRs[,] are unlike the concentrated discharges from dairy retention ponds and corral areas that were the subject of” AGUA. The Order thus observes that discharges from irrigated agricultural operations are different from discharges from dairy operations. This observation does not appear to have been offered as a shot across AGUA’s bow. Rather, the State Water Board appears only to have been commenting upon the lack of guidance addressing application of the Antidegradation Policy and noting that what little guidance exists has involved discrete point source pollution or forms of nonpoint source pollution more concentrated and less diffuse than discharges from irrigated agriculture (such as manure), and therefore more amenable to a “traditional antidegradation analysis.” The Order does not “distinguish” AGUA by suggesting the Antidegradation Policy does not apply to nonpoint source pollution. The Order does not reject or refuse to follow the “two-step process” described in AGUA. (AGUA, supra, 210 Cal.App.4th at p. 1278.) To the contrary, the Order undertakes an antidegradation analysis, making the findings described in AGUA. (Id. at pp. 1278-1286.) The trial court determined the State Water Board and Central Valley Water Board made the required findings, and substantial evidence supports the court’s determination, as we have shown. (See Section III.D.1, ante.)

Environmental Law Foundation v. State Water Resources Control Bd.

AI Brief

ENVIRONMENTAL LAW FOUNDATION, C093513

STATE WATER RESOURCES CONTROL BOARD,

EAST SAN JOAQUIN WATER QUALITY COALITION,

PROTECTORES DEL AGUA SUBTERRANEA,

STATE WATER RESOURCES CONTROL BOARD,

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RENNER, J.

MAURO, J.

APPENDIX

AI Brief