California Court of Appeal Holds Reasonable Use Finding Not Required for Wastewater Discharge Permits

03.07.2023

The Second District of the California Court of Appeal released on Monday its opinion for the case of Los Angeles Waterkeeper v. State Water Resources Control Board, deciding the question of whether the State and Regional Water Boards have a duty to review the reasonableness of wastewater discharge permits prior to their approval. The trial court initially ruled that the State Water Resources Control Board (State Water Board) did have a duty to review these permits to determine whether the amount of wastewater being discharged was reasonable before issuance of the permit. Conversely, the trial court held that the Regional Water Quality Control Board, Los Angeles (Regional Water Board) did not have such a duty, reasoning that the assessment of whether the permitted use is reasonable occurs at the state level whereas the Regional Water Board is limited to assessing water quality. On appeal, however, the Second District reversed the trial court’s judgment as to the State Water Board, concluding that they did not have a duty to assess the reasonableness of the discharges. Neither court held that CEQA review was triggered by the issuance of the permits since wastewater permits are exempted from CEQA review in the Water Code.

In its analysis of the issue, the Second District determined at the outset that the LA Waterkeeper failed to adequately plead entitlement to mandamus against the State Water Board, so the trial court should have sustained the State Water Board’s demurrer in the first place. Turning to the question of reasonable use, the court wrote that, even assuming a duty to prevent unreasonable use of water exists, such a duty is “highly discretionary, and nothing in article X, section 2 or the Water Code requires the State Board to take action against any particular instance of unreasonable use or category of unreasonable use.” The opinion notes that the trial court correctly explained how mandamus cannot compel an agency to exercise its discretion in a particular way but then criticizes the trial court’s inconsistency in ordering the State Water Board to investigate particular instances of unreasonable use, as identified by the LA Waterkeeper. The trial court justified its decision on the basis that the discharges from the publicly-owned treatment works in question were “unique,” but the Second District rejected this justification, explaining that this was not based on a workable legal standard nor was it supported by the language of the Constitution or the Water Code.

Ultimately, the court of appeal concluded this part of its discussion by writing that the “Legislature has opted not to include a reasonable use assessment as part of the wastewater discharge permitting process, and we will not override that determination.”

The court of appeal also briefly addressed CEQA claims brought by the LA Waterkeeper with respect to the issuance of wastewater discharge permits. The court declined to decide broadly whether Water Code section 13389 fully exempts the Regional Water Board from CEQA review when issuing wastewater discharge permits. Instead, the court held that Public Resources Code section 21002, the specific provision pleaded by the LA Waterkeeper, does not impose any environmental review requirements and only states a general policy in implementing CEQA’s environmental review procedures. “Because Water Code section 13389 exempts the wastewater discharge permitting process from those CEQA procedures,” the court wrote, “Public Resources Code section 21002 is inapplicable, and the trial court properly sustained the demurrer to the CEQA causes of action.”

The court’s opinion in Los Angeles Waterkeeper v. State Water Resources Control Board affirms that regional water boards have no duty to assess the reasonableness of wastewater discharge permits, and while the State Water Board has a duty to avoid wasteful uses of water where possible, the opinion makes clear that the State Water Board still maintains a high level of discretion in exercising that duty. As for the CEQA issues addressed in the opinion, the court explains that Public Resources Code section 21002 is exempted by Water Code section 13389, but the court refused to discuss the full extent to which the regional boards are exempted from CEQA review when issuing wastewater discharge permits.

This opinion helps to clarify the State and Regional Water Boards’ respective roles in assessing reasonable uses of water, particularly in that this assessment is not meant to occur when reviewing wastewater discharge. Please contact the authors of this alert or your usual AALRR counsel with any questions or for assistance in the wastewater discharge permitting process.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

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