208 Cal. App. 4th 1438
Cal. Ct. App.2012Background
- CASA and Vacaville (the Municipalities) challenged Basin Plan provisions on tributary designations, the 88-63 drinking water policy, and water quality objectives incorporating by reference external standards.
- The trial court denied mandamus relief; the Basin Plan amendments and permit actions were upheld, with the court concluding an adequate process existed to challenge tributary-use designations via basin planning.
- Porter-Cologne Act and federal Clean Water Act contexts govern designation of beneficial uses and water quality objectives; basin plans must reflect designated uses and implement via suitable processes.
- The 1989 incorporation of Resolution 88-63 into the Basin Plan designated MUN for waters lacking explicit uses, with later OAL review (and later re-approval) affecting validity.
- The 1995 Basin Plan replaced the 1989 approach with tributary language linking downstream uses to tributaries, later scrutinized by EPA in 2000 for potential overreach.
- Vacaville’s 2001 permit relied on the Delta’s uses (MUN/COLD) downstream of Old Alamo Creek; the State Board held the Regional Board could designate uses via basin-plan amendments, not per-permit changes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are blanket tributary-use designations lawful, or must uses be set via basin-plan amendments? | Municipalities argue blanket downstream-to-tributary designations lack case-by-case factual basis. | Boards contend tributary rule is a reasonable, regulatory shortcut that preserves downstream protections and complies with federal/state law. | Tributary designations are valid; amendments are required to dedesignate where evidence shows uses do not exist or are not feasible to attain. |
| May water quality objectives incorporating by reference DHS/DPH standards be adopted prospectively? | Incorporation by reference must consider 13241 factors; prospective incorporation may foreclose future economic consideration. | Prospective incorporation of DHS drinking-water standards is proper given public health linkage and APA-adopted DHS standards; 13241 factors are considered. | Prospective incorporation of DHS standards and EPA-approved methods is proper; the board complied with 13241 factors in adopting WQOs. |
| Did Resolution No. 88-63 and its incorporation into the Basin Plan lead to valid MUN designations for unnamed waters? | Resolution 88-63 was disapproved by OAL as a regulation; reliance on it without proper rulemaking is defective. | Even if 88-63 had regulatory status, 1995 Basin Plan amendments and subsequent rulemaking validate continued MUN designations. | Resolution 88-63 and the MUN designations tied to it are reasonably treated as part of Basin Plan provisions subject to rulemaking; mandamus remains available to correct designations when necessary. |
| Is mandamus an adequate remedy to compel basin-plan amendments or dedesignations when necessary? | Mandamus cannot force a particular amendment; it cannot mandate specific outcomes. | Mandamus may compel action or proper interpretation where the agency refuses to act or acts under an improper basis. | Mandamus is available to compel a regional board to act in accordance with basin-plan obligations or to pursue proper amendments; not a vehicle to dictate exact amendments but to ensure rational regulatory action. |
Key Cases Cited
- City of Burbank v. State Water Resources Control Bd., 35 Cal.4th 613 (Cal. 2005) (affirms state control framework and federal preemption limits on stringency)
- City of Arcadia v. State Water Resources Control Bd., 191 Cal.App.4th 156 (Cal. App. 2010) (designates two-component water quality standards; use-bearing framework)
- City of Rancho Cucamonga v. Regional Water Quality Control Bd., 135 Cal.App.4th 1377 (Cal. App. 2006) (mandamus standards for administrative actions; validity of quasi-judicial review)
- Shapell Indus. v. Governing Board, 1 Cal.App.4th 218 (Cal. App. 1991) (deference in technical, evidentiary agency action; evidentiary support standard)
- United States v. State Water Resources Control Bd., 182 Cal.App.3d 82 (Cal. App. 1986) (agency expertise in technical water quality matters; standard of review)