28 Cal. App. 5th 342
Cal. Ct. App. 5th2018Background
- Central Coast Regional Water Quality Control Board adopted a 2012 conditional waiver (for irrigated agriculture) that classified dischargers into three tiers and set monitoring, farm-planning, and implementation requirements; the State Water Resources Control Board later modified that waiver (the "modified waiver").
- Environmental groups (Coastkeeper et al.) petitioned for a writ of mandate challenging the modified waiver as inconsistent with the Central Coast Basin Plan, the State's Nonpoint Source (NPS) Policy, and the antidegradation policy, and as failing to require verification (monitoring) adequate to show compliance with water quality objectives.
- The trial court granted relief in part, finding the modified waiver lacked specific, enforceable measures, adequate monitoring/feedback mechanisms, and time schedules/milestones required by the NPS Policy; it issued a peremptory writ directing the State Board to set aside the modified waiver and formulate a new or revised program.
- On appeal, the State Board and agricultural interveners argued the trial court erred by improperly comparing the modified waiver to an earlier 2010 draft, failing to defer to agency expertise, and misapplying the reasonableness standard; they also challenged specific trial-court findings about tiering and monitoring.
- The Court of Appeal affirmed in part and reversed in part: it held that (1) the trial court lacked substantial evidence to sustain findings that tiering and representative monitoring were per se inadequate, but (2) the modified waiver failed to comply with the NPS Policy because it omitted specific time schedules and quantifiable milestones (largely due to provision No. 83.5, which allowed indefinite "improvement" without measurable benchmarks).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exhaustion of administrative remedies (antidegradation claim) | Coastkeeper: overall waiver unlawfulness excused granular exhaustion; regional board was on notice of antidegradation concerns | State Bd: specific antidegradation objections were not raised below, so claim is unexhausted | Court: Coastkeeper failed to exhaust antidegradation claim (no specific administrative objection was made) |
| Adequacy of tiering (few growers in Tier 3) | Coastkeeper: Tier 3 covers too few growers, letting sources evade strict controls | State Bd/interveners: tiering focused on documented priority pesticides (chlorpyrifos, diazinon) and was reasonable | Court: trial court's finding of inadequate tiering was not supported by substantial evidence; tiering choice was reasonable on the record |
| Adequacy of monitoring (group/representative vs. individual) | Coastkeeper: cooperative monitoring won't identify individual sources or verify effectiveness of practices | State Bd/interveners: statute/NPS Policy allow group monitoring; individual monitoring for all growers would be infeasible; State Bd sensibly referred technical source-identification issues to an expert panel | Court: trial court erred to the extent it found monitoring inadequate solely because it relied on cooperative monitoring; substantial evidence lacking for that specific criticism; referral to expert panel is a reasonable interim approach |
| Compliance with NPS Policy (time schedules, milestones, provision No. 83.5) | Coastkeeper: waiver lacks specific schedules, quantifiable milestones, and clear consequences; provision 83.5 allows open‑ended "improvement" and undermines NPS requirements | State Bd: iterative NPS approach permits adaptive, technical solutions; expert panel will address complex metrics; 83.5 encourages progressive management-practice improvement | Court: affirmed — modified waiver violates NPS Policy because it fails to set specific time schedules and quantifiable milestones; provision 83.5 is inadequate because it replaces required measurable benchmarks with vague "conscientious effort" language |
Key Cases Cited
- Fukuda v. City of Angels, 20 Cal.4th 805 (administrative findings carry a strong presumption of correctness)
- Asociacion de Gente Unida por el Agua v. Central Valley Regional Water Quality Control Bd., 210 Cal.App.4th 1255 (ag) (antidegradation-analysis process and baseline-quality comparison)
- State Water Resources Control Bd. Cases, 136 Cal.App.4th 674 (ag) (agency may not delay or dilute plan requirements without proper amendment)
- Northwest Indian Cemetery Protective Ass'n v. Peterson, 764 F.2d 581 (9th Cir.) (BMP implementation does not automatically equal compliance with water quality standards)
- Communities for a Better Environment v. State Water Resources Control Bd., 109 Cal.App.4th 1089 (deference to agency interpretations does not extend to readings that contradict clear policy language)
- Coastal Environmental Rights Foundation v. California Regional Water Quality Control Board, 12 Cal.App.5th 178 (review standards for administrative factual vs. legal determinations)