Environmental groups notify EPA of intent to file suit for violations of the Clean Water Act

Sacramento River, August 2014
The numerous modifications of the Delta’s water quality standards due to the drought are a violation of federal law, environmental groups say

The NRDC, the Defenders of Wildlife, and The Bay Institute have sent a letter to Jared Blumenfeld, Regional Administrator for the U.S. Environmental Protection Agency, notifying him of their intent to file suit for ‘continuous and intermittent violations of the Clean Water Act.’

The Clean Water Act is a federal statute enacted in 1972 that regulates water quality in the nation’s surface waters. The Act allows states to promulgate their own water quality standards, but established a system of federal oversight to ensure that states maintain adequate water quality standards.

The notice asserts that the EPA has failed in their oversight role by not reviewing the numerous modifications that the State Water Resources Control Board has approved over the past two years to existing water quality objectives in the Delta as established in the Sacramento-San Joaquin Delta Estuary Water Quality Control Plan and implemented by Water Rights Decision D-1641. Those modifications include changes to Delta outflows, minimum flow rates, and salinity compliance points.  Furthermore, the State Water Board has approved modifications to water quality objectives on the Stanislaus River as established by the Water Quality Control Plan for the Central Valley Region and implemented by Water Rights Decision 1422.

The State Water Board has approved all of these changes without addressing compliance with federal law or the Clean Water Act and the EPA has failed in its oversight role, the notice states:

The EPA has failed to carry out its mandatory federal oversight role by ignoring SWRCB’s ongoing pattern of approving changes to Reclamation’s and DWR’s permits that do not meet water quality standards in those plans and in D 1641 and D 1422. The EPA thus violated, and continues to violate, CWA section 303(c)(2)-(4) by failing to review the SWRCB’s modifications to the Bay-Delta and Central Valley Plans.”

Furthermore, the notice states that the EPA has violated the Clean Water Act by not reviewing the existing water quality standards every three years as required by the legislation. Even though the Delta’s water quality control plan has not been reviewed or updated by the State Water Board since 2006, the EPA still has a non-discretionary duty to review existing standards, whether or not a state submits them to the EPA, and so the EPA’s failure to take action in the face of California’s prolonged inaction is thus a violation of a mandatory duty, the letter states.

The letter, dated October 29, puts the EPA on notice that the NRDC, Defenders of Wildlife, and The Bay Institute intend to file suit if these violations are not cured within sixty days.

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