58 Cal.App.5th 396
Cal. Ct. App.2020Background
- Malaga County Water District operates a wastewater treatment plant and historically discharged to on‑site disposal ponds (Discharge Point 002) and a canal (Discharge Point 001). Average flow 2010–2013: ~0.65 mgd.
- Under the 2008 permit Malaga was authorized to discharge 0.85 mgd to the disposal ponds. During the 2014 renewal process staff proposed reducing the pond limit to 0.49 mgd based on pond capacity data.
- The 2014 permit adopted a 0.49 mgd limit but included language allowing the Executive Officer (EO) to approve an increase up to 0.85 mgd if Malaga submitted specified technical documentation (Provision VI.C.2.b.).
- The EO later issued a letter (Jan. 21, 2015) effectuating an 0.85 mgd limit after Malaga submitted additional materials. Malaga filed a writ of mandate challenging the process; the trial court held the EO’s action implemented (not modified) the permit and declared the action moot.
- On appeal the Court of Appeal exercised its discretion to reach the merits despite potential mootness and held the delegation permitting the EO to increase the permitted flow to 0.85 mgd was an improper delegation under Cal. Water Code § 13223. The judgment was reversed and remanded.
Issues
| Issue | Plaintiff's Argument (Malaga) | Defendant's Argument (Board) | Held |
|---|---|---|---|
| Whether allowing the EO to raise pond flow to 0.85 mgd was an improper delegation under Water Code § 13223 | The 2014 permit expressly allowed EO approval up to 0.85 mgd as an implementation step; the EO merely executed the permit, not modified it | The permit condition merely authorized EO implementation of clearly defined, board‑set terms (i.e., EO approval is an administrative implementation, not a modification) | Court: EO approval that increases the numeric discharge limit is a modification and thus an improper delegation to the EO; delegation invalid |
| Whether the appeal is moot because the 2014 permit (plus EO letter) already authorized 0.85 mgd and later permits superseded the 2014 permit | Malaga: relief remains meaningful (e.g., to avoid liabilities and affect related enforcement/sanction proceedings) | Board: later action and expiration of the 2014 permit eliminated any live controversy and federal citizen suits for past conduct | Court: declined to dismiss as moot; exercised discretion to decide due to recurring public importance and remanded mootness/further issues to trial court |
| Whether the EO’s approval was merely implementation (permitted) or a substantive modification requiring board action and public process | EO action was implementation of the board’s conditional allowance in the permit | EO action was valid because the board set the substantive limits and only left verification tasks to the EO | Court: Increasing the numeric effluent limit is substantive and requires the board’s formal modification procedures and public participation; EO cannot lawfully effect that change |
| Whether other procedural/APA/exhaustion challenges require relief (procedural defects, evidentiary/hearsay claims, exhaustion) | Malaga: procedural errors and lack of proper administrative process render the 2014 permit void | Board: Malaga failed to exhaust many administrative remedies; there were no procedural violations warranting relief | Court: Did not reach these issues on appeal (they were not decided below); remanded so trial court can address them in the first instance |
Key Cases Cited
- Hampson v. Superior Court, 67 Cal.App.3d 472 (1977) (board cannot delegate power to issue, modify, or revoke water quality plans; executive officer may make preliminary determinations but final authority rests with the board)
- Russian River Watershed Protection Comm. v. City of Santa Rosa, 142 F.3d 1136 (9th Cir. 1998) (upholding delegation to executive officer to determine measurement/methods where substantive limits were preset by the permit)
- California Assn. of Sanitation Agencies v. State Water Resources Control Bd., 208 Cal.App.4th 1438 (2012) (distinguishing delegations that define method/measurement from delegations that change substantive permit standards)
- Proffitt v. Rohm & Haas, 850 F.2d 1007 (3d Cir. 1988) (changing effluent limitations without formal modification procedures is improper)
- Citizens for a Better Environment v. Union Oil Co., 83 F.3d 1111 (9th Cir. 1996) (agency actions that effectively alter permit terms cannot supplant formal permit requirements without required procedures)
- Ohio Valley Envtl. Coalition, Inc. v. Apogee Coal Co., LLC, 555 F.Supp.2d 640 (S.D.W. Va. 2008) (compliance orders or informal actions that remove or relax effluent limits are improper absent formal modification)