PANEL DISCUSSION: D-1641: How the water quality control planning process works

Attorneys panel with Tess Dunham, Anna Brathwaite, and Larry Caster discusses the water quality control planning process, the San Joaquin flow proposal for Phase 1, and the federal preemption process

At ACWA’s spring conference held in Monterey, this attorney’s program presentation focused on the update to the Bay Delta Water Quality Control Plan, giving background on the basic legal framework of the Porter-Cologne Water Quality Control Act and the Clean Water Act, and discussing court cases and their implications on the planning process currently underway.

The panel participants were:

  • Tess Dunham, shareholder at Somach Simmons & Dunn
  • Anna Brathwaite, legal counsel at Modesto Irrigation District
  • Larry Caster, Director of Natural Resources, Environmental and Environmental, Fennemore and Craig.

The panel was moderated by Jennifer Buckman.

TESS DUNHAM, Somach Simmons & Dunn

Tess Dunham began the panel session with an overview of the water quality planning process, the Clean Water Act, and the Porter Cologne Water Quality Act, and how those two pieces of legislation establish jointly the development of water quality standards which are the basis of the Bay Delta Plan.

For many years, we have always looked at the Bay Delta Plan and that procedure as a water rights type of process because it does end up being fairly focused on flow issues,” she said.  “However I think to really understand what’s going on in the Bay Delta planning process, there has to be a base understanding of how water quality standards work, the development of them, and the requirements under the Clean Water Act, as well as Porter-Cologne.  You also need an understanding of what happens if the State Water Board fails to follow any of the requirements associated with the development of water quality standards and how it can and has in the past taken these very laborious water planning processes and basically toss them on their head as we’ve all seen as through the Bay delta plan over the years.”

The basis for the Bay Delta Water Quality Control Plan is the federal Clean Water Act and the state Porter-Cologne Water Quality Control Act.  The state law was actually adopted first in 1969; the federal Clean Water Act in 1972.

The federal and state water quality laws are similar in that they have a basis in water quality standards and in permitting discharges; a lot of what came out of the Clean Water Act was modeled out of the Porter-Cologne Act.  The United States Environmental Protection Agency has a role; the State Water Resources Control Board clearly has a role; and there are nine regional water boards in California, two of which cover the Bay Delta.  However, in the case of the Delta, the State Water Resources Control Board handles the water quality planning process because they have joint water rights authority as well.

The Clean Water Act requires the states to adopt water quality standards.   If there are impaired water quality standards, the state’s must make a list of impaired waters and compliance with those standards is required.  There are various permits that are established under the Clean Water Act: the 403, the 401 certification process, a 402 permit or NPDES permit, or a 404 permit which is a dredge and fill permit under the Corps of Engineers’ jurisdiction.

What really does the federal Clean Water Act say about water quality standards? Ms. Dunahm said that first, water quality standards are not developed by federal government; they are developed by the states.  Standards need to consist of designated beneficial uses, as well as the water quality criteria necessary to protect those uses.

In general, the surface water quality standards that were in effect in 1972 are our established initial benchmarks,” said Tess Dunham.  “Once a state adopts those standards pursuant to state law, they do have to go to the federal EPA to be approved by US EPA.   The state is required to revisit and revise them as necessary every three years in the process.   If there is impairment to those standards, then they go on the impaired water body list and we have to prepare total maximum daily loads (TMDLs) and water quality standards apply to both point and non point sources of pollution (meaning they apply to POTW’s agriculture and storm water equally).  Now how they’re permitted under state or federal law is a different story, but the standards themselves apply to the receiving water and it’s then regulated through permits on the various types of dischargers.”

Federal water quality standards are not defined directly in the Clean Water Act; the definitions can be found in the regulations.  “The designation of uses is considering the use and value of the water uses; water uses for agriculture, municipal supply, aquatic life, and fisheries are all beneficial uses,” she said.  “There may be sub categories of uses, such as the recreational standard, and then there’s rec two which is a sub category of the recreational standard.”

The criteria to protect beneficial uses must be based on sound, scientific rationale and set at a level to protect designated uses; they may be numeric (pollutant-pollutant) or be narrative (general statement of applicability).

With respect to the water quality in the Bay Delta Plan, there are the South Delta salinity standards that have been put into place to protect the agricultural beneficial uses; currently, the Vernalis standard is 700.  That’s a criteria under federal law, and it’s a water quality objective under state law, but it’s there to protect the designated beneficial use.

Ms. Dunham noted an often overlooked element in the water quality standards arena is the anti-degradation policy.   “In the past several years, the anti-degradation policy has become a very powerful tool by different sectors, environmental advocates and environmental justice folks in challenging state actions with respect to basin planning and/or permitting decisions, claiming that the state has failed to comply with the anti degradation policy and adopting those standards.  The anti degradation policy will apply to the State Water Board’s adoption of the Bay Delta Plan.  It is often overlooked but it has become a very powerful legal tool that the courts have basically found for challenges in different state and regional board planning processes.”

Under the Porter-Cologne, what are the essential elements that have to be in water quality control plans?  The terms ‘basin plans’ and ‘water quality control plans’ are used interchangeably; basin plans are those that are typically adopted by the regional boards to cover their basins.  The Bay Delta plan is the bay delta water quality control plan because it is across watersheds.  The plans need to include beneficial uses same as under federal law, water quality objectives (the state law version of water quality criteria) and a program of implementation which states how the regional or the state boards are going to make sure that those objectives are met.  “

It’s important to note that while they are called plans, they are regulations and they have regulatory effect,” Ms. Dunham said.  “They are implemented through the issuance of permits on dischargers.  Under the Porter-Cologne Act, we can have discharge permits issued to irrigated agriculture.  For publicly-owned treatment works, because it’s a surface water discharge, they have an NPDES permit that also qualifies as a waste discharge permit under state law. Discharge permits under state law apply to both point and non point sources. There’s no exception for non-point sources in state law like there is under federal law. And this is how the state of California implements its federal delegated authority under the Clean Water Act.”

The water boards adopt water quality standards under the state law which is then approved by EPA. “Then we look to the state law elements for water quality control planning and what are the required laws and sections,” she said.  “It’s fairly specific in the Porter Cologne Act; it needs to include beneficial uses, water quality objectives which may be narrative or numeric, the anti-degradation policy and a program of implementation.”

The program of implementation has become a pretty key component in a lot of ways, Ms. Dunham said.  “There is one certain Superior Court case that many of you may not be aware of that has been reason for courts to reject the Bay Delta Plan as it applies to specific dischargers,” she said.  “The program of implementation under the water code has to include a description of the actions necessary to achieve the water quality objectives, a time schedule for taking those actions, and a surveillance and monitoring program to determine compliance with water quality objectives. It is a required element of the plan.”

When the State Water Board adopts the new objectives for the Bay Delta Plan, they are required to take into account a number of different factors,” she said.  “First of all, under California law, water quality objectives are for the reasonable protection of the beneficial use. It’s not absolute protection – it’s reasonable protection of the beneficial use.  And in doing that, the State Board in this case is required to consider a number of different factors: They have to consider the past, present, and probable future beneficial uses, the environmental characteristics of the water body, the achievability of the objective, economic considerations, impact on housing, and impact on recycled water.”

An important component in the Porter-Cologne Act is that the water boards have to regulate to the highest quality that is reasonable.  “The Porter Cologne Act, if you read it carefully, it actually is very balanced,” she said.  “It requires that decisions being made when adopting water quality control plans, water quality objectives, and the implementation of permits to achieve objectives need to be reasonable considering all the demands being placed upon the water, again looking for that balance. It also requires compliance under the legislative intent that the state has to exercise its full power and jurisdiction to protect quality of the water of the state.”

Implementation of the federal water quality standards is done through delegated authority with the NPDES permits.  They must include Water Quality Based Effluent Limitations (WQBELs) if there is reasonable potential to cause or contribute to a violation of a water quality standard and there are usually monitoring provisions.  “Receiving water limits are basically dischargers being told that you can’t cause or contribute that objective from being exceeded as it is and is applied within the receiving water,” she said.  “They are implemented through 401 certifications which have to be provided by the state and typically associated with 404 dredge and fill permits.  401 certifications are also required on with FERC licensing procedures.”

Ms. Dunham noted that the waste discharge requirements don’t just apply to the projects; they are applicable to any discharger that discharges within the Bay Delta area, including agriculture and including dairies.  “To comply with those standards, irrigated agriculture basically has to show that they won’t cause or contribute to a violation of that objective as it is within the receiving water.  They’re required to implement best management practices to do so. And there are watershed management plans and other special studies associated with it if they cause an exceedance.”

In adopting the Bay Delta Plan, the State Water Board has a couple of times failed to comply with the Porter Cologne Act, especially the procedure elements for considering the factors for the adoption of the water quality objectives listed in water code section 13241, and the program of implementation can cause the Bay Delta Plan in whole or in part to be invalidated, she said.

In fact, this did happen with respect to Publicly Owned Treatment Works (POTW) in the recent past.  “Back in 2010-2011, the Central Valley Regional Water Quality Control Board adopted effluent limits for the city of Tracy for its waste water treatment plant based upon the South Delta Objectives,” said Ms. Dunham.  “The city of Tracy took this up to the State Water Board.  There were challenges along the way, because of concerns for POTW’s meeting the Vernalis 700 objective would cause the need to have a reverse osmosis process when the actual discharge from POTW effluent to the Bay Delta was di minimus, or wouldn’t actually have any impact with respect to meeting the objective or not.  So they moved forward to avoid having to put in expensive treatment.

The Sacramento Superior Court basically found that when it came to application of the Bay Delta objectives to POTWs, that the State Water Board had not properly conducted a 13241 analysis as it impacted POTWs and agriculture and other types of dischargers that weren’t considered as part of the Bay Delta Plan,” she continued.  “The State Water Board had to reconsider those salinity objectives as they apply to POTWs and had to take into consideration the 13241 factors and they had to have an adequate program of implementation spelled out in the Bay Delta Plan as it applied to other dischargers.”

In the mean time, the court basically has invalidated application of the Bay Delta salinity objectives to POTW’s until the State Water Board has complied with this writ. That process of course as they’ve been filing returns on a writ of mandate for a number of years now, as we go through the Bay Delta planning process,” Ms. Dunham said.  “You may notice that in this version of the Bay Delta Plan as compared to others, there is large discussion about impacts to POTW’s and other types of dischargers.  All of that drives from this case and I bring this case forward as an example of how having failed to comply with that process under Porter Cologne can have an impact with respect to the validity of the bay delta plan should there a challenge.”

ANNA BRATHWAITE, Legal Counsel for the Modesto Irrigation District

The State Water Board is currently in the process of developing and implementing updates to the Bay Delta Plan in four distinct phases.  The first phase of the update considers potential changes to the San Joaquin River flow objectives in order to protect fish and wildlife beneficial uses in the San Joaquin River and its salmon bearing tributaries, as well as salinity objectives to protect agricultural beneficial uses in the southern Delta.

In December of 2012, the State Water Board released a draft Supplemental Environmental Document (SED); in September of 2016, the Board released revised SED which incorporated changes in consideration of the large number of comments received, new information, and the passage of the Sustainable Groundwater Management Act.  In the second draft SED, the State Water Board is proposing to increase the amount of required flows to be left in the river and would add compliance locations on the Stanislaus, Tuolumne, and Merced Rivers; the Board is also proposing to adjust the salinity requirements to a slightly higher level.

The public comment on the Phase 1 SED closed in November of 2016.  The State Water Board has not released another revision or a final SED as of this time.

Anna Brathwaite is legal counsel for the Modesto Irrigation District, one of the districts that would be required to comply with the State Water Board’s phase 1 proposal.  In her presentation, she discussed the Board’s proposal, noting that there will be three themes in her presentation:

  • The fluctuating tension between water quality law and water rights law the State Water Board attempts to navigate when adopting water quality control plans;
  • The unique role that the projects play in the Delta and water quality control planning: “They are really just an amazing facet of California’s personality in that they’re also the harbinger of development and environmental problem and also the environmental savior to the Delta and that’s complicated,” she said.
  • The Central Valley Project and what it means when one member of the regulated community is the federal government who is also in the middle of things, and all the implications of federalism that go with that.

She began with a brief update on the proposed water quality control plan amendment for phase 1 of the Bay Delta Water Quality Control Plan update, which covers the San Joaquin River and its tributaries, as well as South Delta salinity objectives.  Public comments closed on March 17th; over 2000 comments were received.  Through reading some of the comments, Ms. Brathwaite said she was able to divine some common critiques of the plan.

The Substitute Environmental Document for the project, Phase 1 of the Bay Delta Water Quality Control Plan update, has two components:  The Lower San Joaquin River flow objectives and the South Delta salinity objectives.

The South Delta salinity standard is proposed to be relaxed from 0.7 EC (electrical conductivity) to 1.0 EC.

For the Lower San Joaquin River flow proposal, there are two components.  The first component extends to the tributaries, which would be the Merced, Tuolumne, and Stanislaus rivers, and the proposal is to leave 40% unimpaired flow in the river to improve conditions for fish and wildlife.  “That seems to be relatively simple that between February and June, 40% of the water remains in the river to mimic natural flow conditions to which fish might have become or have become adapted to,” Ms. Brathwaite said.

It’s the second component where probably most of the confusion comes from.  “In broad strokes, it creates a Stanislaus Tuolumne Merced (STM) working group that is going to be empowered by the State Water Board,” she said.  “This will be federal and state agencies that have resource management duties in the Delta. And they will work together to operate a quantity of water to make adaptive flow shifts.”

With respect to adaptive management, she said, “This working group will get together and basically make decisions at least once a year in order to provide an operations plan to the State Water Board executive director by January 20th.   The goals to determine the benefit of the adaptive management program will be created after the plan amendment is adopted and the working group can get together and choose them.”

So moving to the critiques, the project is undefined,” Ms. Brathwaite said.  “Whereas the first portion of the project seemed a little bit simpler – just leaving the water in location x between month x and y, the adaptive management component, to quote the executive summary, ‘allows for a virtually unlimited number of flow scenarios’, so needless to say the project would benefit from further definition to the community that’s affected by it.”

Certainly there are critiques of how the CEQA process has been piecemealed,” she continued.  “Phase one is the San Joaquin River tributaries that contribute into the Delta; Phase two involves the Sacramento River; Phase three is a full water rights adjudication; and Phase four will be a public trust proceeding. Frankly not many of us understand about how the public trust proceeding is going to be conducted.  Certainly part of the general confusion in the community is that the program of implementation is unclear about how the Water Board intends to implement the plan.  As was done in 1978 and in D1641, the State Water Board commenced water rights proceedings in order to allocate responsibilities and currently the plan is just unclear. It shall either be a water rights proceeding or perhaps through 401 certification which is a much different animal.”

Another common theme is that there seems to be a lack of scientific basis that the community can agree upon. “There’s a three-legged stool that supports the benefits presumably of the lower San Joaquin River objective,” she said. “It’s three pronged: temperature benefits are anticipated, an improvement in floodplain habitat is anticipated, and there is an actual fish population benefit that was calculated.  So I’ll just quote NRDC’s statements from their January 3rd appearance at the public hearing that the State Water Board’s analysis of the flood plain requires additional analysis: ‘To the extent that the SED acknowledges that the ground is wet with its current tools, that is not the same thing as demonstrating that there is sufficient or worthwhile habitat for the fish to actually live in.’”

As for temperature benefits, Ms. Brathwaite noted she only had information for the Tuolumne, and for the February to June period, they are already meeting the proposed temperature objectives under current conditions.  “So again the project itself could deal with some further analysis,” she said.

Another critique is the State Water Board’s lack of authority to order many of the activities that were part of the proposed amendment.   “The parties could agree that the State Water Board does have authority to allocate water, but it requires due process and the opportunity to be heard which is not part of this quasi-legislative plan adoption process,” she said.  “There’s also a lack of cited authority in the SED about what would authorize the State Water Board to take control of storage space in the private storage facilities on the different tributaries, and what would authorize the storage of water and the release at the discretion of the regulator.  Those are just items of authority that simply require further definition.

Essentially the plan is looking to have the water turned over now,” Ms. Brathwaite said.  “Certainly as I read into the adaptive management program is that it explicitly acknowledges a desire to create objectives for that water after plan adoption. The promise to plan an experiment of adaptive management seems to be a bit of an overreach of Robie’s initial approval of the VAMP experiment to help meet the 1996 water quality objectives.”

Ms. Brathwaite then presented a list of additional case law, noting that one of the cases, PUD No. 1 versus Washington Department of Ecology, might be relevant to the upcoming plan, should litigation ensue.  “This is a US supreme court case that generally speaks to the scope of the state’s authority to impose water quality conditions through the 401 certification process.  For those that aren’t familiar, 401 certification is not a matter of notice and due process, but instead is a matter of imposing conditions on a FERC license.  So the licensee at that point is held to the standard of either accepting their FERC license with these conditions voluntarily, or just not accepting the license. And for some parties that is tantamount to holding an energy supply hostage until water quality issues can be resolved.”

So getting to the question, what is beyond D1641?  Ms. Brathwaite said that the Racanelli decision had ruled that the State Water Board had not fulfilled its duty to protect all beneficial uses, because in the 1978 plan it had only set the level of quality to be what the watershed was before the projects began operating.  “As Racanelli pointed out, the level of protection is not related to a particular water right holder, but instead should encompass all beneficial uses and the area should be looked at regionally. The plan areas should have a regional focus and he explicitly acknowledges that the board should look upstream to other contributors to the plan.”

One way to look at the current 2016 amendment is to simply say it’s the exact same plan, but they simply moved it upstream,” she said.  “The allegation is the plan area is so narrowly drawn it only speaks to a very narrow number of water right holders that again, the state water board might have narrowly drawn the plan area around water right holders instead of looking to all of the beneficial uses that are in the plan area that should be protected.”

Another point of contention is the environmental baseline.  “It’s currently set at 2009 when the state water board initially sent out its notice of preparation to scope out the 2012 plan,” she said.  “Certainly there are arguments to be made that it is not an appropriate baseline today. We’ve had passage of the Sustainable Groundwater Management Act.  We have simply moved locations from the Delta proper which was scoped in 2009 out the tributaries.  Perhaps most importantly is during the most recent drought that we went through, there were nearly a dozen Temporary Urgency Change Petitions that demonstrate our state’s inability to manage when the requirements in the D1641 have not to date been met so it may not have been an appropriate base line in 2017.”

In the Third Appellate District’s review of D-1641, Justice Ron Robie had approved the State Water Board’s use of a voluntary agreement between users on the San Joaquin River.  “What this agreement was for was to bridge the water that the Bureau of Reclamation had agreed to provide under D1641 and what the plan itself actually required at the Vernalis compliance point,” Ms. Brathwaite said.  “So the water provided by Modesto Irrigation District and others was provided as part of a voluntary agreement, but it was also an experiment to determine the efficacy of the objectives that were at issue.  So once that experiment was blessed by Robie, Robie did say, ‘If you want to use an experiment to help meet the plan requirements that’s acceptable.’  Robie’s main issue was that whatever it is you’re going to do, you need to write that into your water quality control plan and that’s what the State Water Board had failed to do.”

So as we go forward with adaptive management as the almost controlling part of the lower San Joaquin River flow objective, one can’t help but wonder what happens when the entire program becomes an experiment?,” she said.  “We don’t have any metrics or goals now when we adopt the plan. The program of implementation openly contemplates that there will be an iteration of learning process.  Except for the fact that an experiment actually requires a hypothesis and controlled factors and all of those things, it is left for us to wonder whether the State Water Board thinks that Robie’s approval of the Vernalis Adaptive Management Plan experiment is sufficient to turn an entire plan into an experiment.”

The Racanelli decision said it was appropriate for the State Water Board to modify the project’s permits to implement the plan.  “Here with the new plan, we have a new set of actors,” Ms. Brathwaite said.  “Even with respect to the old actor and the Central Valley Project who remains responsible for the Delta salinity objective. Whereas the state water board had issued a decision and an order to implement the program and prior plans, can it change the program objective?  Can it change the standard from 0.7 to 1.0 and a legislative document without offering the Central Valley Project notice and due process?

She pointed out that on the Merced, the Tuolumne, and the Stanislaus Rivers, there are several senior pre-1914 water right holders, riparians, reservoir owners, and owners of stored water, and each of those has a distinctly different property right that will require a different treatment than perhaps the water right licenses that the board acted upon in 1978 and 1996.

Water Code 1254 states that municipal or domestic is the highest use of water and irrigation is the next highest.   “We have a plan that is solely focused on benefits to fish and wildlife, so it will be interesting to see how the beneficial uses will roll out,” she said.

Ms. Brathwaite said the she does think litigation is what’s going to happen next.  “Like all things, there’s a spectrum of utility,” she said.  “On one end, to the extent we can get some clarity and cooperation between the regulator and the regulated community with the help of the courts, then that’s just good litigation. We need that; that will actually smooth out the three year updates to the water quality control plan that we should be expecting in perpetuity, going forward.  And then there’s terrible litigation where we just get nothing accomplished and nobody but the environment suffers. So while I say litigation is what is next and what is going to happen. I just certainly have all best wishes for my client and everyone involved that it’s just productive and useful.

There are some issues with CEQA and the project description, Ms. Brathwaite said.  “Recirculation seems to come up quite a bit with the legal standard being what is sufficiently new information to require the board to put the environmental document back through its original process with a notice and a scoping and another opportunity for comment,” she said.  “In fact, in the SED itself it says that the passage of the ground water management act and the drought were incredibly important changes in the environment that it had incorporated into the plan, and to the extent the board staff felt it necessary to point out the differences and notice them in the document. Others were using those as arguments to determine why it is the board should recirculate.”

With respect waste and unreasonable use and the ‘three-legged stool’ that supports the argument that there are benefits from the lower San Joaquin River objective, Ms. Brathwaite said the fish population benefits that were identified was about 1100 fish.  “Under the preferred alternative, that provides over 300,000 acre-feet of water which is kind of the comparable metric of the 40% unimpaired flow,” she said.  “That is an average, and my understanding is that 300,000 acre-feet is as large as Southern Nevada’s entire entitlement off of the Colorado River.  Is it a waste and unreasonable use of water to send 300,000 acre-feet of water down the river without a second use in order to bring possibly bring back 1100 fish?  This is just the data from the SED, so that could change as we get to a final document.

Another interesting issue that will come to the fore is the standard of review for vested rights, she said.  “Robie speaks about the processes necessary and the standard of review that will be applied should vested rights be affected by the State Water Board’s quasi-legislative action.  Before when I spoke about the lack of authority, we have reservoir facilities on private property. We have water rights that need to be reallocated. Notice and due process are required. And the court will look at a quasi legislative decision under a de novo standard of review, so no deference.  The court will look at least with respect to the vested interests. They will look to see whether there is substantial evidence to support the findings.

With respect to the Sustainable Groundwater Management Act, to the extent that the current 2016 SED openly contemplates significant and unavoidable groundwater impacts due to the groundwater pumping that will occur once the surface water is removed from the current users. “That is considered and has been alleged to be a violation of the Sustainable Groundwater Management Act – to purposefully adopt a plan that harms and openly degrades groundwater aquifers; it just isn’t acceptable anymore after passage of the Act.”

With respect to administrative procedures and complaints, Ms. Brathwaite said the 401 certification and due process is very interesting issue, especially with the two federal facilities licensed by FERC on two of the three tributaries that are potentially affected by the proposal.  “The US Supreme Court has found that states have a great deal of discretion about what they can impose on a federal license, but to quote the US Supreme Court, that discretion is not unbounded,” she said.  “And to the extent that there could be an attempt to implement the water quality objectives without notice and due process that would be afforded to senior water right holders under state law, it is an open question whether that it could be imposed on them through federal law.  It would be an interesting question indeed as we sit through the Trump administration who recently had Justice Gorsuch join the US Supreme Court. He is not well known for his love of a deferential standard to administrative agencies.”

Ms. Brathwaite then gave her conclusions.  “The State Water Board continues to struggle with its lawful exercise of water rights and water quality planning,” she said.  “So as they struggle with their exercise and we see the original SED come out as a redoing of the issues that the court found from Racanelli and so far as the State Water Board may have confused its planning authority with its intent to act upon water right holders.  That’s limiting the State Water Board’s authority. Racanelli said that it should be broader and should encompass more than just the protection of one beneficial use.”

Secondly, I think the water board really needs to identify and manage the Delta diverters and their water rights,” she said.  “It seems to be a bit tangential now that the water quality control plan has moved to an entirely new geographic area, but some of us may say that an inability to accomplish number two is probably one of the reasons why the plan area needed to be moved The federal government and the Central Valley Project remains an important and interested party in California’s water allocations matters and we’re all very interested to see how they fare both under the water quality control plan and in Cal Water Fix.”

This is just a personal note to the water lawyers,” said Ms. Brathwaite.  “For the foreseeable future I do see us as remaining in great demand.”

LARRY CASTER, Director of Natural Resources for Fennemore Craig

Larry Caster then gave an overview of federal preemption law with respect to federal reclamation law.  “Federal preemption arises from the supremacy clause of the federal constitution,” he began.  “To paraphrase the clause, it simply says this constitution and the laws of the United States made in pursuance thereof shall be the supreme law of the land and the judges in every state shall be bound thereby anything in the constitution or laws of the states to the contrary notwithstanding.  That is the constitutional basis for the preemption clause.”

When the courts look at whether a state law or regulation is preempted, they start with a presumption that areas of historic state police power are not to be preempted unless there is a clear articulation of that intent by Congress,” he said.  “The question isn’t whether a state has regulated in a particular area the way the federal government would like to regulate or is regulating, but whether the subject area’s one in which the state is historically regulated. If it is, then this presumption against preemption is in play.”

Federal preemption occurs when Congress enacts a statute that explicitly preempts state law.  Mr. Caster said it happens once in a while, but it’s not very common and it’s very uncommon with reclamation.

An example is a Ninth Circuit Case where the United States sued Nevada challenging on preemption grounds in Nevada law that made it unlawful to deposit high level radioactive waste within the state of Nevada.   The question technically from the lawyer’s perspective was, is there a federal question jurisdiction to allow the federal courts to get involved in this dispute?

There’s something called the Nuclear Waste Policy Act, which is looking for a high waste depository, and one of potential sites is Nevada’s Yucca Mountain; that’s probably why the Nevada statute was passed,” said Mr. Caster.  “But the court expressed grave concern about the preemption possibility here and ruled that this case presented a sufficiently substantial question that fell within federal subject matter jurisdiction.”

A statute can also be preempted if the state law or regulation actually conflicts with federal law. “There’s an early example of this under federal reclamation law out of California and it is Ivanhoe Irrigation District versus McCracken,” he said.  “The California Supreme Court ruled in that case that the anchorage limitation under federal reclamation law was contrary to California law and therefore would not apply within the state of California.  The US Supreme Court said that’s not correct; this is a part of the federal law and federal law preempts on this subject.  So that’s a clear case of conflict of state law versus federal law.”

There is also potential for preemption when Congress occupies a legislative field.  “These are areas of implied preemption and it gives rise to vigorous disagreements in case law,” he said.  “This can happen either when the scheme of federal regulation is sufficiently comprehensive to ensure that Congress didn’t intend for the states to regulate, or the field is one in which the federal is so dominant that it will be assumed that the federal system excluded state regulation.

He said he didn’t have a case to cite, but he could give a clear example.  “The Central Valley Project Improvement Act established the priorities for use of Central Valley Project water.  But to the extent the state attempted to reorder priorities established by the Central Valley Project, it’s clear that would be a field preemption issue.”

Challenges to state laws based on preemption take two forms: One is based on the state law’s own terms or the regulation’s own terms and is called a facial challenge; the other is based upon the impact of the implementation of a state law or a state regulation and is called an applied challenge.

Mr. Caster acknowledged that facial challenges are very difficult to succeed on.  “For one thing I think you can all assume the state regulator is not going to be foolish enough to articulate the position in a manner that defies the federal government; it’s going to articulate in a way that seems imminently reasonable under state authority.  There are strategic reasons why you would choose a facial challenge: You can do it right away and at less cost, and if you knock it out, you never have to suffer the pain of that regulation or state law’s implementation.”

He suggested that if one is contemplating challenging a state statute or a state regulation, one should develop a record of the impact.  “Evidence is critical, and a good example of that is in California versus United States.  On remand, the Ninth Circuit noted over and over again where Reclamation failed to prove the impact that it alleged that the state regulations were having.  The Court said it had ample opportunity to provide this evidence and failed to do so; in fact in that case, Reclamation stood on its legal position that it didn’t have to prove it, that it was a facially invalid state condition. So that’s a risky maneuver, so I’m just suggesting that you think about developing your evidence as you go along.”

There’s no particular form required for a congressional statement to accomplish preemption. Section 8 of the Reclamation Act deals expressly with the topic of preemption.  “This is the focus of California versus United States which is a critically important decision,” he said.  “First of all, the Secretary of the Interior must comply with state law only when the secretary is carrying out provisions of the Reclamation laws and the state law relates to control appropriation used or distribution of water used in irrigation or any vested water rights required thereunder.  This was added by the United States Supreme court in California versus United States. The state law must be consistent with Congressional directives, which is simply a federal statute that is potentially preemptive.”

Section 101B directed the Secretary to operate the Central Valley Project in conformity with state water quality standards.  “So if the Secretary determines that the standards are inconsistent with congressional directives, the secretary is to ask the attorney general to sue to determine the standards applicability. The secretary would not have the authority to make the decision whether that suit is filed. Suits on behalf of the United States are initiated by the attorney general; that’s the attorney general’s authority.  All the Secretary can do is ask.”

This is a recognition of what the California versus United States decision was talking about, which is state laws are applicable unless they are inconsistent with congressional directives,” Mr. Caster said.  “Then CVPIA came in later and it had some specific instructions to the Secretary about what to do, what water to devote to fish and wildlife purposes, and how to determine how that pool of water is available.”

The later legislation may have overcome the 1986 legislation and many have implied repealed it,” he continued.   “The rule for implied repeal under federal statutes is that later legislation is not inferred to repeal earlier legislation unless the later Act expressly contradicts the earlier one or implied repeal of the earlier act is absolutely necessary to give the later act any meaning whatsoever.  Outside of those circumstances a statute dealing with a narrow subject is not repealed implicitly by a later statute covering more generalized spectre. That’s from the Supreme Court’s latest decree on how you determine whether a federal statute is implied repealed.”

Looking at the CVPIA and the1986 legislation, there is potentially an argument for litigation: Is the 96 legislation impliedly repealed by the CVPIA?  “I would leave that for your judgment. I think the answer is no but that certainly would be something that would come up in litigation.  I think one of the important takeaways from my paper actually is at the conclusion which gives you in an outline form, the questions that are asked in an analyzing federal preemption issues.  I think it’s a useful mechanism to simply walk through whatever your question is and ask those series of inquiries and hopefully that will shed some light on the federal preemption topic.


Question:  With respect to the anti-degradation policy, it’s been interpreted or implied as a non degradation policy. ‘Anti’ is just try to minimize; non would be zero tolerance, so where are we at with that now?

How anti-degradation gets applied is, they go back and look at what was the quality of the water in 1972,” responded Tess Dunham.  “If the action that’s being taken will degrade a high quality water from 1972 – regardless of what’s happened to it between 1972 and now – that’s called degradation. So what was the salinity in the Bay Delta in 1972?  Unfortunately, there probably is data and information out there that tells us what it is.”

Let’s take the south delta objective,” Ms. Dunham continued.  “If raising the standard from 700 to 1000 decimeters is basically causing it to degrade from what it was in 1972, then that is called degradation. That’s typically where a lot of critics will say, ‘sorry, state, you can’t authorize that to happen.’  But that’s not the case; the state can authorize degradation they just have to make certain findings in order to do so. They have to find that it’s to the maximum benefit to the people of the state and that basically you’re still protecting the high quality water up to the level of the objective that’s being set.  That’s the key component that a lot of the critics fail to remember is that the state can authorize degradation.”

Unfortunately what’s happened in the litigation that’s been going on with anti degradation, is it’s just been applied in a legal context fairly recently and the analysis to support the findings has been absent,” Ms. Dunham said.   “The state needs to have its own analysis and information in the findings in order to support the ability to degrade the water and that’s a key component.”

Follow-up question:  How does sea level rise come into that?  Do they acknowledge that or is it, that’s an issue, tough you’ve got to deal with it?

It’s not acknowledged,” responded Ms. Dunham.  “Currently in the federal regulations or in state law now as with climate change, whether that will change it or not, I don’t know. There is a way to consider natural conditions, and whether that has changed the baseline based upon natural conditions, but that’s a new nuance that hasn’t quite been factored into it.”

Question:  Anna, you touched on the fact that there’s some overlap between the Bay Delta Plan update and the Central Valley Basin Plan. What provisions in the law are there with respect to overlapping plans?

There’s a water code statute that to the extent that there is a conflict between a State Water Board issue plan and a regional plan, the State Water Board plan will control,” replied Anna Brathwaite.  “I was definitely focusing much more in on that, the current 2016 amendment is just geographically different than the geography from the prior plan. So we don’t so much have conflicting plans at least for us at this moment.”

Where we tend to have some conflicts I think is in the program of implementation now,” added Tess Dunham.  “To my knowledge, the regional boards and the Central Valley Board specifically has not tried to address flow directly head on like the State Water Board, nor do they have the authority to do so. However in the program of implementation and how they implement the salinity standards and total maximum daily loads is where some of the conflict has come in, especially with respect to the lower San Joaquin.  How one is going to meet the TMDL or the load requirements that are adopted by the Central Valley Board, even though it may pertain somewhat to a Bay Delta Plan or a State Water Board adopted objective, so you do have some interplay between that.”

The Central Valley Board has spent the last ten years developing a salt and nitrate management plan that is now being developed into basin plan amendments which will be going through the process,” Ms. Dunham continued.  “It is a far reaching salinity management strategy plan for the whole Central Valley and while it does not change any delta objectives, it does not have the authority to do that, there is the program of implementation and trying to address salinity within the whole valley and not just within the Bay Delta itself.”

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