March 2, 2023 -Earlier this week, the Second District Court of Appeal in California issued a decision in the case of Los Angeles Waterkeeper v. State Water Resources Control Board.  A big takeaway from the February 27 decision is that the Court found that the State Water Board’s duty under state law to prevent waste and unreasonable use of water is “highly discretionary” and does not require an investigation or assessment of every allegation of unreasonable use.

Key Findings.

• The State Water Board’s duty to prevent waste and unreasonable use of water is highly discretionary and does not require an investigation or assessment of every allegation of unreasonable use.
• The regional boards’ role in state water law is to regulate water quality, not water use, and therefore, the Los Angeles Board has no duty to evaluate waste and unreasonable use.
• Public Resources Code Section 21002 does not mandate environmental review in NPDES permitting contexts.
• Code of Civil Procedure Section 1021.5 only allows an award of attorney fees to a successful party, and therefore, Waterkeeper was not entitled to attorney fees in this case.

The case involved allegations that four Los Angeles area Publicly Owned Treatment Works (POTWs) were discharging wastewater in a way that constituted waste or unreasonable use of water. The Court overruled the trial court’s decision, finding that the State Water Board did not violate its duty to prevent waste and unreasonable use of water by declining to investigate the allegations.

The Court also upheld the trial court’s ruling that the Los Angeles Regional Water Quality Control Board had no duty to evaluate the reasonableness of the POTWs’ discharges, as water quality falls within the purview of regional boards, not water rights or water use. Additionally, the Court found that a section of California’s Environmental Quality Act did not impose environmental review requirements on the Los Angeles Board when issuing wastewater discharge permits under the federal Clean Water Act.

Finally, the Court reversed the trial court’s award of over $700,000 in attorney fees to Los Angeles Waterkeeper, stating that attorney fees can only be awarded to successful parties.

Overall, the Court’s decision clarified that the Waste and Unreasonable Use Doctrine is highly discretionary and does not require the investigation or assessment of every allegation of unreasonable use. The decision also confirmed that the NPDES permit process is not required to be the focus of such review. The State Water Board remains able to focus its limited resources on its own priorities to conserve and protect California’s water resources from waste or unreasonable use.

Source and More Information:  Downey Brand