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Notes on Appellate Court Anti-Degradation Ruling

November 6, 2012 OPINION IN AGUA et al v. Central Valley Regional Water Quality Control Board

Most of you are aware that Coast Action Group, CAG, over the years has invested significant energy pursuing federal and State water law as a means of protecting water and forest based resources.

As part of this effort CAG has worked on State Policy for impaired waterbody listing, TMDL policy, and individual State and EPA TMDLs. CAG has also supported the use of Implementing Programs to attain Water Quality Standards in cases where the waters are impaired and those standards are not being met. However, CAG has maintained that Water Quality Control Plans, Implementing Programs (WDRs and Waivers), and Permits are subject to State and Federal Anti-degradation Policy. (Please see the regional policy, from Water Quality Objectives in the Basin Plan. Below, and – attached State Board Policy).

Though, CAG has continuously claimed that anti- deg policy must be imposed in Regional and State Board permitting process and Implementing Programs – there has not been much traction in this area………until the advent of the Appellate Court ruling noted above.

Please note that the SWRCB Attached docs: Resolution 68-16 and Questions and Answers on Resolution 68-16 states that NPDES, Water Quality Control Plans, WDRs, and Waiver are subject to anti-deg policy.

Please read the summary of how this ruling may be applied to permits and programs. These notes are a summary of Anti-Deg Coalition discussion (10/27) of the meaning an interpretation of this ruling.

Summary/Discussion of Decision Implications

This decision was on based on a Central Valley Dairy WDR (Waste Discharge Order – allowing the discharge of waste that could degrade water quality) which was challenged by environmental groups claiming the order did not follow anti-deg regs.

The State argued that the water was already degraded thus the anti-deg rule did not apply.

The Appeals Court Ruled:

Clearly, under Resolution 68-16, anti-deg rule applies to high quality water (waters meeting Water Quality Standards as of 1968 base line). Thus the anti-deg rule applies in this case. Any discharge that can further degrade water under this permit/action is covered by the anti-deg language and is not permissible.

The court did indicate if some discharge may be allowed if findings are made that Best Practical Treatment will protect water quality – and – that there is monitoring in place that would alert for potential degradation if BPT is not working. However, BPT or sufficient monitoring were not appropriately applied in this case.

Meaning of Ruling:

Anti-deg policy applies to surface and ground water.

Anti-deg policy applies to high quality water (if water was meeting water quality standards recently – or – 1968 baseline) Note: Regional Basin Plan for the North Coast has a more inclusive description of waters to be protected under anti-deg policy.

In cases where water quality is so impaired that anti-deg would not apply – no permits at all should be written.

Compliance with anti-deg policy means the permitting agency shall supply complete and full analysis of water quality conditions and how Best Practical Treatment will prevent degradation, with monitoring as a backup. If a permit says there will be no degradation this statement must be substantiated by the permittor. If monitoring of BPTs is by monitoring – the permittor must take action. Blanket and unsupported statements are not acceptable.

Costs of compliance may be part of analysis – but are not to limit compliance.

Current Dairy WDRs and Waivers (Waivers assume permissible discharge – and are subject to anti-deg as Water Quality Control Plans) are not meeting anti-deg mandates.

Regional Boards should affirm federal designation of Tier 1,2, and 3 waters to help determine water quality condition and protection level.

Language from the Basin Plan (for the North Coast) – Section 3 – Water Quality Objectives (The Basin plan is legally enforceable).

The water quality objectives contained herein are a compilation of objectives adopted by the State Water Board, the Regional Water Board, and other state and federal agencies. Other water quality objectives and policies may apply that may be more stringent. Whenever several different objectives exist for the same water quality parameter, the strictest objective applies. In addition, the State Water Board “Policy With Respect to Maintaining High Quality Waters in California” also applies. The state policy incorporates the federal Antidegradation Policy, where the federal Antidegradation Policy is applicable.

Controllable water quality factors shall conform to the water quality objectives contained herein. When other factors result in the degradation of water quality beyond the levels or limits established herein as water quality objectives, then controllable factors shall not cause further degradation of water quality. Controllable water quality factors are those actions, conditions, or circumstances resulting from man’s activities that may influence the quality of the waters of the State and that may be reasonably controlled.

Water quality objectives form the basis for establishment of waste discharge requirements, waste discharge prohibitions, or maximum acceptable clean up standards for all individuals and dischargers.