The opinion
Filed 6/2/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
LOS ANGELES WATERKEEPER, B309151
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS171009)
v.
STATE WATER RESOURCES
CONTROL BOARD,
Defendant and Appellant;
REGIONAL WATER QUALITY
CONTROL BOARD, LOS ANGELES
REGION,
Defendant and Respondent;
CITY OF BURBANK,
Real Party in Interest and
Appellant.
LOS ANGELES WATERKEEPER, B309153, B309155,
B309148
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. Nos. BS171010,
BS171011, BS171012)
STATE WATER RESOURCES
CONTROL BOARD,
Defendant and Appellant;
REGIONAL WATER QUALITY
CONTROL BOARD, LOS ANGELES
REGION,
Defendant and Respondent.
LOS ANGELES WATERKEEPER B312949
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BS171009)
v.
STATE WATER RESOURCES
CONTROL BOARD,
Defendant and Appellant.
APPEAL from judgments of the Superior Court of
Los Angeles County, James C. Chalfant, Judge. Affirmed in part
and reversed in part.
2
Chatten-Brown, Carstens & Minteer, Amy Minteer,
Michelle N. Black; Sycamore Law, Daniel Cooper; Kelly Clark
and Benjamin Harris for Appellant Los Angeles Waterkeeper in
Nos. B309151, B309148, B309153, B309155 and Respondent
Los Angeles Waterkeeper in No. B312949.
Rob Bonta, Attorney General, Robert W. Byrne, Assistant
Attorney General, Eric M. Katz and Jessica Barclay-Strobel,
Deputy Attorneys General for Appellant State Water Resources
Control Board and Respondent Regional Water Quality Control
Board, Los Angeles Region.
Somach Simmons & Dunn, Roberta L. Larson, Brittany K.
Johnson and Michelle E. Chester for California Association of
Sanitation Agencies, Association of California Water Agencies
and WateReuse Association as Amici Curiae on behalf of
Appellant State Water Resources Control Board.
Amy A. Albano, Christopher Chwang; Brownstein Hyatt
Farber Schreck, Stephanie Osler Hastings, Elisabeth L. Esposito
and Jessica L. Diaz for Appellant City of Burbank.
____________________________
In 2017, the Regional Water Quality Control Board, Los
Angeles Region (Regional Board) renewed permits allowing four
publicly owned treatment works (POTWs) to discharge millions of
gallons of treated wastewater daily into the Los Angeles River
and Pacific Ocean. The Regional Board issued the permits over
the objections of Los Angeles Waterkeeper (Waterkeeper), an
environmental advocacy organization. Waterkeeper sought
review of the permits before the State Water Resources Control
Board (State Board), and the State Board declined review.
Waterkeeper then filed petitions for writs of mandate
against the State and Regional Boards (collectively, the Boards),
3
naming the cities that owned the four POTWs as real parties in
interest. Waterkeeper contended the Boards had a duty under
article X, section 2 of the California Constitution (article X,
section 2) and the Water Code to prevent the waste and
unreasonable use of water. Waterkeeper alleged the Boards had
failed in that duty by issuing the permits without evaluating
whether the quantities discharged were reasonable, or whether
the treated wastewater could be recycled or otherwise put to
better use. Waterkeeper further alleged the Regional Board
issued the permits without making findings required under the
California Environmental Quality Act (Pub. Resources Code,
§ 21000 et seq.; CEQA).
The Boards demurred to the petitions, arguing the
Constitution and Water Code imposed no duty, and that
wastewater discharge permits were exempt from CEQA under
Water Code section 13389.
The trial court overruled the demurrer as to the State
Board, finding the State Board had a constitutional and statutory
duty to prevent the waste of water. The trial court found the
enormous discharges from the POTWs triggered the State
Board’s duty, and therefore the State Board had to evaluate
whether the discharges were reasonable. Although the trial court
acknowledged it could not compel the State Board to fulfill its
duty in any particular way, mandamus would lie to compel the
State Board to take some action. Because Waterkeeper alleged
the State Board had taken no action at all in regard to the
POTWs’ discharges, the trial court concluded Waterkeeper had
adequately pleaded a basis for mandamus.
The trial court sustained the demurrer as to the Regional
Board. Although the trial court found the Regional Board also
4
had a general duty to prevent the unreasonable use of water, the
court ruled that duty was not triggered in this case given the
different roles of the State and Regional Boards. Whereas the
State Board was in charge of comprehensive planning and
allocation of water, the Regional Board was responsible solely for
water quality, that is, ensuring state waters were sufficiently free
of pollution. The trial court found the Regional Board lacked the
authority to compel POTWs to recycle more wastewater, and that
it was impractical to include a reasonable use assessment as part
of the wastewater discharge permit renewal process, particularly
given the complexities of wastewater recycling.
The trial court further ruled the Regional Board did not
have to comply with CEQA when issuing the wastewater
discharge permits to the POTWs. Although the exemption under
Water Code section 13389 by its terms applied only to chapter 3
of CEQA, governing the preparation of environmental impact
reports, the trial court concluded the exemption was meant to
mirror a federal statute that exempted wastewater discharge
permits entirely from the federal equivalent of CEQA. In support
of its conclusion, the court cited case law and regulations
interpreting Water Code section 13389.
Waterkeeper and the State Board proceeded to trial. After
receiving evidence, the trial court concluded Waterkeeper had
proven the State Board had not fulfilled its duty in regard to the
four POTWs. The trial court found dispositive the State Board’s
interrogatory responses, which the court interpreted as admitting
the State Board had never evaluated whether the discharges
from the POTWs were reasonable. Although the State Board and
real parties offered evidence the State Board actively was
collecting data on wastewater discharges and incentivizing water
5
recycling through funding, streamlined regulations, and other
methods, the court found none of this satisfied the specific duty to
evaluate the four POTWs’ discharges.
Accordingly, the trial court issued four judgments and four
writs of mandate directing the State Board to evaluate whether
the discharges from each of the four POTWs were reasonable,
and to develop a factual record to allow for judicial review of
whatever decision the State Board reached.
The State Board appeals from the four judgments against
the State Board. Real party City of Burbank appeals from the
judgment against the State Board pertaining to the Burbank
POTW. Waterkeeper also appeals, challenging the trial court’s
sustaining the demurrer in favor of the Regional Board. We
consolidated all these appeals for briefing, argument, and
decision. The trial court later awarded Waterkeeper attorney
fees under Code of Civil Procedure section 1021.5, and we have
consolidated the State Board’s appeal from that award with the
other appeals as well.
This is our second opinion in this case. Our original
opinion affirmed the judgments of dismissal in favor of the
Regional Board and reversed the judgments and writs of
mandate against the State Board. The Boards then filed a
request for modification, asking that we clarify certain issues
addressed in our opinion, specifically the Regional Board’s
authority to regulate the unreasonable use of water, and the
scope of the CEQA exemption in Water Code section 13389. On
our own motion we vacated our opinion, ordered rehearing, and
received responses to the Boards’ modification request from
Waterkeeper and City of Burbank.
6
Having reviewed the additional briefing from the parties,
we conclude our original holdings, as well as the reasoning in
support of those holdings, were correct. We, however, have made
certain modifications to clarify the scope of our holdings as set
forth in our Discussion, post. In addition to addressing the
modification request and the responses to that request, we have
made minor changes to our original analysis in support of our
holdings and added information to our Factual and Procedural
Background.
We agree with the trial court that the Regional Board had
no duty to evaluate the reasonableness of the POTWs’ discharges
when issuing the permits. The Regional Board’s purview is water
quality, not reasonable use, and the Legislature has not
authorized the Regional Board to determine whether a POTW’s
discharges could be put to better use. Although Waterkeeper
argues constitutional mandates apply to all government actors,
the applicable language of article X, section 2 and the Water Code
is too unspecific to compel the Regional Board to take on a role
for which it was not empowered.
We further hold that Waterkeeper has not adequately
pleaded entitlement to mandamus against the State Board, and
the trial court should have sustained the State Board’s demurrer.
Assuming arguendo the State Board has a duty to prevent the
unreasonable use of water, that 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
purported unreasonable use or category of unreasonable use. The
trial court correctly noted mandamus will not lie to compel an
agency to exercise its discretion in a particular way, but then ran
afoul of that principle by ordering the State Board to investigate
7
particular instances of unreasonable use identified by
Waterkeeper. Although the court justified this by finding the
enormity of the POTWs’ discharges was “unique,” that is not a
workable legal standard, nor one supported by the language of
the Constitution or the Water Code.
We reject Waterkeeper’s position that the issuance of
wastewater discharge permits constitutes an affirmative
governmental act that requires compliance with the reasonable
use doctrine embodied in article X, section 2. Again, neither the
constitutional provision nor the Water Code imposes any limits
on the State Board’s discretion how to prevent unreasonable use
of water. 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.
We decline to decide broadly, as the trial court did, whether
Water Code section 13389 exempts the Regional Board from all
provisions of CEQA when granting the type of wastewater
discharge permits at issue in this case. Rather, we address only
whether the Regional Board must comply with Public Resources
Code section 21002, the only specific provision of CEQA invoked
by Waterkeeper. We conclude Public Resources Code section
21002 does not itself impose any environmental review
requirements, but merely states a policy to be effectuated
through the environmental review requirements located in other
chapters of CEQA, such as the environmental impact reports
governed by CEQA chapter 3. Thus, Public Resources Code
section 21002’s policy guidance has force only to the extent an
entity otherwise is obligated to comply with CEQA’s
environmental review requirements. Because Water Code
section 13389 expressly exempts the wastewater discharge
8
permits at issue here from an environmental impact report
requirement, Public Resources Code section 21002 is
inapplicable. The trial court did not err in sustaining the
demurrer to Waterkeeper’s CEQA causes of action.
We therefore affirm the judgments of dismissal in favor of
the Regional Board and reverse the judgments and writs of
mandate against the State Board. Our reversal of the judgments
against the State Board requires us also to reverse the award of
attorney fees.
REGULATORY BACKGROUND
The Porter-Cologne Water Quality Control Act (Wat. Code,
§ 13000 et seq.; Porter-Cologne Act) “is the principal law
governing water quality regulation in California.” (Monterey
Coastkeeper v. California Regional Water Quality Control Bd., etc.
(2022) 76 Cal.App.5th 1, 8 (Monterey Coastkeeper).) The goal of
the Porter-Cologne Act is “ ‘to attain the highest water quality
which is reasonable, considering all demands being made and to
be made on those waters and the total values involved, beneficial
and detrimental, economic and social, tangible and intangible.’
[Citation.]” (City of Burbank v. State Water Resources Control
Bd. (2005) 35 Cal.4th 613, 619 (City of Burbank).)
“The Legislature designated the State Board and nine
regional water quality control boards . . . as the agencies with
primary responsibility for the regulation of water quality under
the Porter-Cologne Act. ([Wat. Code,] § 13001.) The State Board
formulates and adopts state-wide policy for water quality control,
allocates funds, and oversees the activities of the regional water
boards. ([Id.,] §§ 13140, 13320.) Each regional water board is
responsible for, among other things, water quality protection,
permitting, inspection, and enforcement actions within its region.
9
([Id.,] § 13225, subd. (a).)” (Monterey Coastkeeper, supra,
76 Cal.App.5th at p. 8.)
One function of the regional water quality control boards is
to issue wastewater discharge permits, such as the permits at
issue in the instant case. (Monterey Coastkeeper, supra,
76 Cal.App.5th at p. 8, citing Wat. Code, §§ 13263, 13269.) The
type of permits issued in this case trace back to the Federal
Water Pollution Control Act (33 U.S.C. § 1251 et seq.), commonly
known as the Clean Water Act. (City of Burbank, supra,
35 Cal.4th at pp. 619–620.)
The Clean Water Act establishes “ ‘effluent limitations,’
which are restrictions on the ‘quantities, rates, and
concentrations of chemical, physical, biological, and other
constituents’; these effluent limitations allow the discharge of
pollutants only when the water has been satisfactorily treated to
conform with federal water quality standards.” (City of Burbank,
supra, 35 Cal.4th at p. 620, citing 33 U.S.C. §§ 1311, 1362(11).)
The Clean Water Act allows a state “to enforce its own water
quality laws so long as its effluent limitations are not ‘less
stringent’ than those set out in the Clean Water Act.” (City of
Burbank, at p. 620, citing 33 U.S.C. § 1370.)
The National Pollutant Discharge Elimination System
(NPDES) is “ ‘the primary means’ for enforcing effluent
limitations and standards under the Clean Water Act. [Citation.]
The NPDES sets out the conditions under which the federal
[Environmental Protection Agency] or a state with an approved
water quality control program can issue permits for the discharge
of pollutants in wastewater. (33 U.S.C. § 1342(a) & (b).) In
California, wastewater discharge requirements established by
the regional water quality control boards are the equivalent of
10
the NPDES permits required by federal law. ([Wat. Code,]
§ 13374.)” (City of Burbank, supra, 35 Cal.4th at p. 621.)
The State Board may review a regional water quality
control board’s action or inaction concerning a wastewater
discharge permit, but is not required to do so. (Monterey
Coastkeeper, supra, 76 Cal.App.5th at p. 8, citing Wat. Code,
§ 13320, subd. (a).) The State Board’s decision not to review a
regional water quality control board’s action or inaction is not
subject to judicial review. (Monterey Coastkeeper, at p. 8.)
FACTUAL AND PROCEDURAL BACKGROUND
1. Events leading to the writ petitions1
The four POTWs at issue in this appeal are the Burbank
Water Reclamation Plant (Burbank plant), the Los Angeles-
Glendale Water Reclamation Plant (Los Angeles-Glendale plant),
the Donald C. Tillman Water Reclamation Plant (Tillman plant),
and the Hyperion Water Treatment Plant (Hyperion plant).
These plants receive and treat wastewater conveyed via sewer
systems. Once treated, the water is either discharged to a
watercourse and eventually to the ocean, or recycled to be reused
again.
It is undisputed that, on average, millions of gallons of
water a day, and in the Hyperion plant’s case hundreds of
millions of gallons a day, are discharged into the Los Angeles
River and ocean rather than recycled. The evidence at trial
demonstrated significant differences among the POTWs in
gallons recycled relative to gallons discharged. As summarized
1 This background is summarized largely from undisputed
findings by the trial court.
11
by the trial court in its ruling after trial, the Burbank plant’s
average daily discharge was 2.17 million gallons of treated
wastewater, and its average daily recycled water production was
2.55 million gallons. The Glendale plant’s average daily
discharge was 8.8 million gallons, and its average daily recycled
water production was 4.2 million gallons. The Tillman plant’s
average daily discharge was 27.5 million gallons, and its average
daily recycled water production was 6.5 million gallons. The
Hyperion plant’s average daily discharge was 230 million gallons,
and its average daily recycled water production was 37 million
gallons.
The Regional Board has issued wastewater discharge
permits to the POTWs for decades, renewing them approximately
every five years. The Regional Board most recently considered
renewing the POTWs’ wastewater discharge permits in 2017,
with amendments incorporating updated water quality
requirements. The Regional Board held public hearings
regarding the permits, and Waterkeeper submitted oral and
written comments on each permit.
In its comments, Waterkeeper noted the potential for
greater recycling and reuse of the treated water from the POTWs.
Given that potential, Waterkeeper contended the Regional Board
and State Board were obligated under state water law, including
article X, section 2, to determine whether the quantity of water
discharged from the POTWs constituted a waste or unreasonable
use. In its comments concerning the Burbank, Los Angeles-
Glendale, and Tillman plants, Waterkeeper further contended
the Regional Board was required to make findings under
chapter 1 of CEQA as to whether there were feasible alternatives
to the discharges with fewer environmental impacts.
12
The Regional Board renewed the permits, concluding it
was not required to conduct a waste and unreasonable use
analysis beforehand. The Regional Board further concluded
Water Code section 13389 exempted the wastewater discharge
permitting process from CEQA. Waterkeeper sought review of
the Regional Board’s decision before the State Board. The State
Board declined to take review.
2. The writ petitions
Waterkeeper then filed four petitions in the trial court for
writs of mandate against the Regional and State Boards, each
directed at one of the POTW’s wastewater discharge permits.2
The petitions listed as real parties in interest the cities that own
and operate the POTWs along with their public works
departments.3
2 The operative petitions for purposes of this appeal are
the three petitions filed September 26, 2017, in case nos.
BS171009, BS171010, and BS171011, and the first amended
petition filed November 2, 2018, in case no. BS17012.
3 The petition concerning the Burbank plant listed as real
parties in interest the City of Burbank and its Department of
Public Works, the City of Los Angeles and its Department of
Public Works, Bureau of Sanitation, and the City of Glendale.
The petitions concerning the Los Angeles-Glendale and Tillman
plants listed the same real parties, and added the City of
Glendale’s Department of Public Works. The petition concerning
the Hyperion plant listed as real parties the City of Los Angeles
and its Department of Public Works, Bureau of Sanitation.
13
a. The Burbank, Los Angeles-Glendale, and
Tillman plant petitions
The petitions concerning the Burbank, Los Angeles-
Glendale, and Tillman plants are largely duplicative, and we
therefore discuss their allegations collectively. In the petitions,
Waterkeeper alleged that the three POTWs, along with the
Hyperion plant, are part of an “integrated network . . . that
process[es], treat[s], and recycle[s] the majority of wastewater
throughout Burbank, Los Angeles, and Glendale.” This
integrated network “produce[s] millions of gallons of water per
day of secondary and/or tertiary treated water, capable of being
reused and put to beneficial use,” which could “ultimately
increase[ ] Los Angeles’ local water supply.” Waterkeeper alleged
only a small portion of the treated water is recycled and reused,
however, and “the majority of the treated water is discharged into
the Los Angeles River, its tributaries, and the Pacific Ocean.”
Waterkeeper alleged, “[T]he water being discharged is
typically being used by water consumers only once despite the
enormous environmental and economic costs of transporting the
water to Los Angeles. Given the scarcity of water resources in
Los Angeles and throughout Southern California, additional
increases to local water supply serve[ ] a critical role in bolstering
local water security and decreasing our dependency on expensive
and energy-intensive water imports.”
Waterkeeper alleged that article X, section 2 and
section 100 of the Water Code impose a “non-discretionary
affirmative duty” on the Regional and State Boards “to determine
whether a water use is reasonable and beneficial and to prevent
the waste and unreasonable use of all water resources in
California.” Waterkeeper further alleged Water Code section 275
14
imposes a nondiscretionary duty on the State Board “to prevent
the waste, unreasonable use, and unreasonable method of use” of
water. Waterkeeper alleged the Regional and State Boards had
failed to fulfill these duties by allowing the POTWs to discharge
millions of gallons of treated wastewater without determining
whether that discharge “constitutes a reasonable and beneficial
use or waste and unreasonable use of a water resource.”
Waterkeeper further asserted the Regional Board violated
CEQA by not conducting an analysis under chapter 1 of CEQA,
including whether there were feasible alternatives to the
discharges with reduced environmental impacts, and whether
there were “cumulative impacts” from the multiple waste
discharge approvals. Waterkeeper alleged the exemption in
Water Code section 13389 by its terms applied only to chapter 3
of CEQA, associated with preparation of environmental impact
reports, and did not apply to chapter 1.
Waterkeeper prayed for writs of mandate compelling the
Regional Board to vacate the Burbank, Los Angeles-Glendale,
and Tillman plant wastewater discharge permits and conduct
further proceedings to analyze whether the discharges were a
waste and unreasonable use of water under article X, section 2
and Water Code section 100, and to make findings consistent
with the requirements of chapter 1 of CEQA. Waterkeeper also
prayed for writs of mandate compelling the State Board to
evaluate whether the discharges were a waste and/or
unreasonable use under article X, section 2 and Water Code
section 100.
b. The Hyperion plant petition
Waterkeeper alleged the Hyperion plant on average
recycled 48 million gallons of treated wastewater per day, a
15
“small fraction” of the average of 230 million gallons discharged
daily into the ocean. (Capitalization & underscoring omitted.)
As in the petitions for the other three POTWs, Waterkeeper
asserted causes of action against the Regional and State Boards
under article X, section 2 and Water Code section 100, and
against the State Board under Water Code section 275.
Differing from the other three petitions, the Hyperion
petition alleged not only that the Boards had failed to evaluate
whether the Hyperion discharges were unreasonable, but also
that the discharges were in fact unreasonable, and the Boards
had failed to take action to stop them. Waterkeeper alleged the
Regional Board “(a) failed to prevent the ongoing waste of water
from Hyperion . . . , (b) improperly authorized a waste and
unreasonable use . . . when it adopted the Permit, and (c) failed to
consider the reasonableness of the ongoing discharge . . . .” The
State Board similarly failed to “prevent the discharge” and failed
to “analyze whether the discharge . . . is a reasonable and
beneficial use of a water resource.”
The Hyperion petition differed also in that it did not allege
a cause of action under CEQA.
3. Demurrer
The trial court related the four petitions and consolidated
them for briefing and trial.
The State Board and Regional Board filed a demurrer to all
four petitions, contending the petitions failed to state facts
sufficient to constitute a cause of action. The Boards argued that
article X, section 2 and Water Code section 100 were enacted to
prohibit water rights holders from wasting water, not to impose a
duty on the Regional Board to assess unreasonable use when
issuing a wastewater discharge permit. Nor did article X, section
16
2 and Water Code sections 100 and 275 require the State Board
to investigate and enforce every alleged instance of waste or
unreasonable use, which requirement would infringe on its
prosecutorial discretion. Imposing such a duty would lead to the
absurd result of the State Board having to investigate every
complaint of unreasonable use of water brought to its attention,
including neighbors leaving their lawn sprinklers on overnight.
The Boards argued that although Water Code
section 13389 by its terms provides an exemption only from
chapter 3 of CEQA, not chapter 1, case law and regulations
uniformly have interpreted the exemption as applying to CEQA
as a whole, an interpretation consistent with CEQA’s structure.
In opposition, Waterkeeper argued article X, section 2 and
Water Code section 100 by their language do not merely affect
water users, but also broadly impose a duty on all California
agencies to prevent waste and unreasonable use of water. Water
Code section 275 also imposes a “clear mandate” on the State
Board to take appropriate action to prevent unreasonable use of
water. Waterkeeper’s claims did not infringe upon the State
Board’s prosecutorial discretion—Waterkeeper’s claims arose not
because the State Board had failed to investigate a wasteful use
of water, but because the Regional Board had affirmatively
approved the POTWs’ discharges without considering whether
those discharges were wasteful or an unreasonable use of water.
In other words, the trigger for the duty was not the potential
waste of water, but the Regional Board’s approval of the potential
waste of water without further analysis. The Boards’ argument
for a complete CEQA exemption was contrary to the plain
language of Water Code section 13389, which clearly limited its
reach only to chapter 3 of CEQA, not chapter 1.
17
4. The trial court’s ruling on the demurrer
The trial court issued a detailed written ruling on the
demurrer, overruling it as to the State Board, and sustaining it
as to the Regional Board.4
a. Ruling concerning the State Board
The court first concluded article X, section 2 imposed a duty
on the State Board to prevent the waste of water. The court
agreed with the Boards “that the existing case law generally
concerns waste by water users and no case addresses the State
Board’s constitutional duty under article X, section 2 to prevent
waste or unreasonable use in the discharge of wastewater.” The
court nonetheless concluded the “plain language” of that
constitutional provision “creates a mandatory duty for all
responsible agencies to prevent waste or unreasonable use of
water.” The court noted “[a] public agency can be compelled to
act to prevent a waste of water pursuant to this constitutional
duty,” citing Elmore v. Imperial Irrigation Dist. (1984)
159 Cal.App.3d 185, 197–198, which held that an irrigation
district had a mandatory duty under article X, section 2 to avoid
wasting water. (Elmore, at p. 193.)
The trial court found the State Board “most certainly is a
responsible agency under article X, section 2,” citing National
Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 444 for
the proposition that the State Board’s role had evolved to include
4 Although, as noted in our summary, the Hyperion
petition differed significantly from the other three petitions, the
trial court’s analysis largely treated the four petitions identically.
Waterkeeper does not challenge that aspect of the trial court’s
analysis on appeal, and we do not address it further.
18
“comprehensive planning and allocation of all waters.” The court
further read National Audubon to hold that “the constitutional
requirement to prevent waste and unreasonable use is
mandatory.” Citing Environmental Defense Fund, Inc. v. East
Bay Municipal Utility District (1977) 20 Cal.3d 327, the court
found that article X, section 2 extends to wastewater recycling
and reclamation.
Because Water Code section 100 “largely mirrors the
applicable language in article X, section 2,” the trial court ruled
that statutory provision also imposed a duty on the State Board
to prevent waste and unreasonable use of water. The court found
that Water Code section 275, which provides the State Board
“shall take all appropriate proceedings or actions . . . to prevent
waste [and] unreasonable use . . . of water,” “underscores” the
duty imposed under article X, section 2 and Water Code
section 100.
The trial court then concluded the State Board’s duty was
triggered under the facts alleged by Waterkeeper. The court
acknowledged, “The State Board has the discretion to decide the
manner in which it complies with its constitutional duty . . . , and
this discretion imposes no duty to address unreasonable use in
the vast majority of circumstances. . . . [T]he court may not
compel the Board to exercise its discretion in a particular
manner.” The court noted it nonetheless could compel the State
Board to exercise its discretion when it has not done so, and could
also correct an abuse of discretion.
The court stated, “The State Board’s discretion has limits
and they are exceeded in this case. The four POTWs release
hundreds of millions of gallons of water into the Los Angeles
River and Santa Monica Bay every day. This level of wastewater
19
discharge . . . is so large that the State Board must do something
to prevent waste.” Rejecting the argument that imposing a duty
would require the State Board absurdly to investigate any
potential unreasonable use, however small, the court said, “[T]he
issue is one of degree, and the difference in degree between this
case and almost all other circumstances is so large as to be
different in kind.”
The court emphasized that the wastewater discharge
permits “are the trigger for the State Board’s duty to act, but
there otherwise is no link between the two; Waterkeeper is not
contending that the State Board must act as part of the
permitting process. The State Board’s duty arises from its actual
or constructive knowledge of the quantity of discharge allowed by
the permits.” “[T]he State Board is not required to become the
water police that investigates and prosecutes every running
sprinkler in California,” but here, where “[t]he Regional Board
permitted a wastewater use when it approved the [waste
discharge] permits,” the State Board was required to act.
The trial court conceded that no prior court had imposed a
duty on the State Board to evaluate the reasonableness of
wastewater discharges, but concluded such a duty was consistent
with the evolution of state water law and the State Board’s
expanding role.
The trial court listed “a variety of options” for the State
Board to address the POTWs’ potential unreasonable water use,
including making findings, imposing a general regulation, or
taking appropriate enforcement or administrative action. “This
is a matter for the State Board’s exercise of discretion, but the
State Board can be compelled to take some action.” “The State
Board has not considered the factors surrounding the discharge,
20
and there is no rational connection between its choice not to act
and the purpose of Article X, section 2. [Citation.] The State
Board must take some action in the exercise of its duty . . . and to
do nothing is an abuse of discretion.”
The trial court rejected the argument that the State Board
was not “ ‘doing nothing’ ” because it was conducting a study of
the Los Angeles River, the flow of which depended in part on
discharges from the POTWs. The court concluded the question of
what the State Board must do to satisfy its duty was a fact issue
for trial.
b. Ruling concerning the Regional Board
The trial court ruled that the Regional Board had the same
“general constitutional duty” as the State Board to prevent waste
and unreasonable use, but concluded the Regional Board
“does not have a duty to impose reasonable use requirements for
the extraordinarily large discharges at issue in this case.” The
court based this conclusion on the different roles played by the
two entities.
The court explained, “[T]he State Board is the state agency
in charge of the comprehensive planning and allocation of water
[citation] that establishes statewide policy for water quality
control ([Wat. Code,] §13140), and has a statutory duty to
institute all appropriate proceedings to prevent waste and
unreasonable use ([id.,] §275).”
The Regional Board, in contrast, only “ ‘formulate[s] and
adopt[s] water quality control plans for all areas within [its]
region.’ [Citations.]” The court noted that “[w]ater quality plans
do not address the amount of wastewater discharge,” and
although wastewater discharge permits do address discharge
amounts, “they address only specific issues, including ‘the
21
beneficial uses to be protected, the water quality objectives
reasonably required for that purpose, other waste discharges, the
need to prevent nuisance, and the provisions of Section 13241.’
Water Code §13263. None of these considerations concern[s]
whether the quantity of water discharged is a waste or
unreasonable use. As a result, the Regional Board does not have
a specific statutory duty to prevent the unreasonable use of
treated wastewater.” As for the Regional Board’s constitutional
duty, the court concluded that duty was “too general to require
[the Regional Board] to take action in issuing a discharge permit
concerning water quality.”
The trial court listed practical reasons not to impose a duty
on the Regional Board to consider waste and unreasonable use
when issuing a wastewater discharge permit. The court found
the Regional Board had no authority to require cities to recycle
their wastewater, because under Water Code section 1210 the
owner of a POTW has an “ ‘exclusive right to the treated
wastewater,’ ” and case law considers treatment and disposal of
sewage to be a “ ‘municipal affair.’ ” The court further found it
would be impractical to include a determination concerning
recycling during the wastewater discharge permit proceedings
because “[n]one of the facts concerning recycling are before the
Regional Board when it considers a permit [citation], and no law
mandates the use of recycled water.”
The trial court also noted, “[A] city’s decision to recycle
water is largely a feasibility consideration involving complex,
technical issues, including: (a) the physical and technical
capacity to treat wastewater for reuse; (b) health and safety
criteria; (c) demand for recycled water by the city’s customers;
(d) existence of sufficient infrastructure to allow the city to
22
deliver the recycled water to customers; (e) sufficient funding—
whether through water rates, grants, or government loans—for
the necessary operational components of a recycled water project;
and (f) the effects of decreased discharges to a watercourse which
must be approved by the State Board under Water Code
section 1211.” “[G]iven the numerous complexities associated
with water recycling, a requirement that regional boards consider
whether wastewater should be recycled, in lieu of discharged, at
the time a discharger seeks to renew its discharge permit is
simply bad public policy.”
The trial court rejected Waterkeeper’s argument at the
hearing on the demurrer that the Regional Board did not have to
require more recycling, but could remedy the wasteful discharges
simply by reducing the amount of discharge allowed under the
permits. As Waterkeeper argued, this would leave it to cities to
determine how to comply with the reduced discharge allowance,
perhaps by reducing municipal water use and therefore the
amount of wastewater flowing into the POTWs. The trial court
disagreed with this approach, reasoning that “a regional board
should not impose discharge reductions without a feasible plan in
place for either the reduction of wastewater and/or recycling of
that wastewater.” Also, the Legislature had placed the State
Board in charge of any discharge reductions under Water Code
section 1211, “indicat[ing] that the regional boards should not
address the issue.”
In conclusion, the trial court stated, “The regional boards’
statutory duties exist to ensure water quality only and their
constitutional duty to prevent waste does not require them to
step in where the State Board has a concomitant planning duty.”
23
Turning to the CEQA causes of action, the trial court
concluded that the purpose of the exemption under Water Code
section 13389 was to parallel the federal Clean Water Act’s
complete exemption for wastewater discharge permits from the
federal equivalent of CEQA, an exemption intended to avoid
delays in authorizing waste discharges. “As such, section 13389’s
exemption from CEQA for wastewater discharge permits is
complete,” despite the language of the exemption referring only to
CEQA chapter 3. In support, the court cited case law holding,
inter alia, that the exemption under Water Code section 13389
also applied to chapter 2.6 of CEQA. The court further found
that California Code of Regulations, title 23, section 3733, a State
Board regulation interpreting Water Code section 13389 as a
complete CEQA exemption, was entitled to deference. Thus,
Water Code section 13389 “not only relieves the Regional Board
of the Chapter 3 requirement to prepare an [environmental
impact report], but also relieves the Regional Board of those
CEQA obligations that ordinarily are satisfied through
preparation and consideration of an [environmental impact
report], including the policies of Chapter 1 to consider feasible
alternatives and mitigation measures.”
5. Decision after trial
The consolidated cases proceeded to trial on the causes of
action against the State Board, following which the trial court
issued another detailed written decision granting the writs of
mandate sought by Waterkeeper.
In its written decision, the trial court summarized its
ruling on the demurrer and affirmed its conclusion that the State
Board had a duty “to assess the four POTWs’ waste and
unreasonable use when they discharge wastewater.” The court
24
rejected the State Board’s argument that imposing such a duty
would require the State Board to evaluate the discharges of all
800 POTWs in the state, many if not all of which were
discharging at least some treated wastewater that otherwise
could be recycled. The State Board had confirmed at trial “that
the four POTWs [at issue in the case] collectively discharge on
average almost 300 [million gallons per day] of treated
wastewater into the Santa Monica Bay and the Los Angeles
River,” and “[t]here is no evidence that any other POTW in the
state even remotely comes close to” that level of discharge. “As
the court ruled on demurrer, the issue is one of degree, and the
difference in degree between this case and any other
circumstance is so large as to be different in kind. [Citation.]
The four POTWs are unique and there is no evidence that the
State Board is at risk of being forced to investigate other POTW
discharges.”
In line with its ruling on the demurrer, the trial court
concluded that, although the State Board had discretion how to
carry out its duty to prevent waste and unreasonable use, that
discretion was “exceeded in this case” given the “hundreds of
millions of gallons of water” collectively discharged from the four
POTWs every day. “[T]he four POTWs are unique in the level of
their wastewater discharge . . . and the State Board can be
compelled to exercise its discretion in the first instance.”
The trial court found Waterkeeper had proven the State
Board had not met its duty to address the potential waste of
water from the POTWs. The court found “dispositive” the State
Board’s interrogatory responses in which the State Board
“confirmed that it had never conducted any reasonable use or
waste analysis of the discharge from any of the four POTWs,” and
25
“conceded that it has no position on whether the POTW
discharges are a waste or unreasonable use of that water
resource.”
For example, one interrogatory cited by the trial court
asked whether it was the State Board’s contention that it had
“conducted an analysis or series of analyses functionally
equivalent to a REASONABLE USE ANALYSIS evaluating the
discharge of wastewater at the HYPERION TREATMENT
PLANT . . . .” The State Board responded, in part, “The State
Board does not contend that it has conducted an analysis or
series of analyses functionally equivalent to a REASONABLE
USE ANALYSIS . . . . The State Board contends that it does not
have a legal duty to conduct” such an analysis. Another
interrogatory asked whether it was the State Board’s contention
that the Hyperion plant’s discharges were not a waste of water,
and the State Board responded, in part, “[The State Board]
neither contends [the Hyperion plant’s discharge] is a ‘waste’ nor
does it contend [the discharge] is not a ‘waste,’ as that term is
understood in the water rights context.” In light of these and
similar interrogatory responses, the trial court stated, “Having
performed no analysis and admitting that it has no position on
whether the POTWs’ discharges are a waste or unreasonable use
of wastewater, the State Board has not met its mandatory duty.”5
5 On appeal, the State Board disputes the trial court’s
interpretation of the interrogatory responses. Because we
conclude the trial court should have sustained the demurrer as to
the State Board, we do not address the State Board’s arguments
challenging the findings at trial.
26
The trial court then addressed arguments and evidence of
the State Board and real parties in interest, concluding none of it
established the State Board had met its duty.
The State Board argued that through regulations and the
wastewater discharge permits themselves, the State and
Regional Board required the POTWs annually to report regarding
the amounts of treated wastewater discharged versus reused, and
the feasibility of increased recycling. The trial court found these
reports “are relevant to a reasonableness/waste evaluation, but
no evaluation has occurred,” nor did the State Board contend it
could not conduct a reasonableness analysis without the reports.
The court further found the reports in fact “show[ ] that the
discharges constitute considerable potential waste,” noting
reports that recycled water made up only seven percent of
Glendale’s water supply in 2017, Burbank projected it would
discharge over half of its treated wastewater through 2040, and
in 2018 and 2019, Los Angeles had a recycling rate of less than
five percent of the authorized discharges.
The trial court disagreed that the State Board had satisfied
its duty by awarding billions of dollars in grants and loans to
fund water recycling facilities. “The cost of recycling facilities
and the State Board’s funding efforts are relevant to a reasonable
use analysis, but they do not demonstrate that it is preventing
waste or unreasonable use of the four POTWS’ discharges. The
State Board does not require prevention of waste and
unreasonable use as a condition of funding of any of these
projects.”
Although the State Board had promulgated a statewide
recycled water policy setting goals for water conservation and the
use of recycled water, the policy “does not evaluate, and does not
27
prevent, unreasonable or wasteful POTW discharges.” The court
noted the policy had no “mechanisms to enforce recycling goals,”
and the reporting requirements were not intended to prevent
waste and unreasonable use, “but to ‘potentially update the
recycled water goals in the future.’ ”
The State Board offered evidence that it had taken steps to
streamline permitting of recycled water facilities and expand the
potential uses of recycled water, and at the Legislature’s
direction was investigating the feasibility of authorizing recycled
water for potable uses. The trial court stated, “Obviously, the
scientific and legal limitations on recycled water use, and the
recent expansion of such use through regulation on indirect
potable use and a future regulation on direct potable use, are
relevant to the State Board’s duty to evaluate the reasonableness
of the POTWs’ discharge. They may well restrict any ability of
the POTWs to avoid waste and show the discharge as reasonable.
But they are not a substitute for such an evaluation.”
The State Board offered evidence it was conducting a study
to determine the water flow necessary in the Los Angeles River to
support aquatic life and recreational uses, which in turn would
affect to what degree the Burbank, Los Angeles-Glendale, and
Tillman plants could reduce their discharges into the river in
favor of recycling. The trial court found this study “does not
demonstrate that the State Board is taking any action to prevent
the waste or unreasonable use of wastewater from the POTWs.”
Even assuming the discharges supported beneficial uses such as
wildlife habitat and recreation, the court concluded beneficial
uses nonetheless can be wasteful and unreasonable, and the river
study did not satisfy the State Board’s duty to so determine.
28
The State Board offered evidence it was developing new
water use efficiency standards, which would reduce indoor water
use, and therefore reduce the wastewater flowing to the POTWs.
The trial court stated water conservation “is laudable and may
result in less waste/unreasonable use. It is something the State
Board should consider in evaluating the POTWs’ discharge, but
water conservation is not a substitute for the evaluation of
reasonable use, nor for the reduction of waste.”
The State Board and real parties offered evidence of real
parties’ progress in reducing wastewater discharges and
increasing water recycling, including a pledge from the mayor of
Los Angeles to recycle 100 percent of the city’s wastewater by
2035. The trial court stated, “Real Parties miss the point. The
issue is not whether they have taken steps to conserve and
recycle water. The issue is whether the State Board has complied
with its duty to evaluate the reasonableness/waste of the POTWs’
discharge.” Without that evaluation, “it is impossible to claim
that any of Real Parties’ efforts prevents waste.”
The trial court found nothing in the real parties’
declarations evaluating the discharges for waste and
unreasonable use. Nor had the real parties made any “binding
commitment to recycle.” The real parties’ declarations, moreover,
“demonstrate the painfully slow pace of the voluntary municipal
recycling efforts.”
The trial court wrote, “Nothing in Real Parties’ declarations
indicates that the State Board has taken any steps to prevent the
waste or unreasonable use of the discharges, or even considered
the issue as involving waste or unreasonable use of a water
resource. Without State Board action, the waste or unreasonable
use of the Hyperion[ ] plant discharge may well continue past
29
2035. Hoping and encouraging Los Angeles to eventually put
discharged wastewater from the Hyperion plant to its fullest
beneficial use does not fulfill the State Board’s ongoing duty to
prevent the waste or unreasonable use of that discharged
wastewater.”
In concluding its evaluation of the evidence, the trial court
stated, “The State Board argues, without citation to evidence,
that its strategy for reducing POTW discharges and increasing
recycled water has been to address POTWs as a statewide class of
dischargers through a combination of carrots and sticks.
[Citation.] Yet, the State Board admits that California is behind
on its recycled water goals [citations], and merely encouraging
third parties to increase water recycling is not equivalent to
preventing waste or unreasonable use of discharged wastewater.
Real Parties’ recycling and conservation efforts may or may not
be reasonable. That is an issue for the State Board to address
and decide.”
Turning to the question of what the State Board must do to
fulfill its duty, the trial court concluded the State Board’s only
obligation at this stage was to “evaluate whether waste and
unreasonable use is occurring at the four POTWs considering
relevant factors.” The court declined to order the State Board
also to craft a remedy, because such an order would presume the
State Board would find waste and unreasonable use, which it had
yet to do.
In its opening trial brief, Waterkeeper contended the
discharges from the POTWs constituted waste under the seven
factors listed in the State Board’s decision in In the Matter of
Alleged Waste and Unreasonable Use of Water by Imperial
Irrigation Dist. (June 21, 1984) State Water Resources Control
30
Board Decision 1600. The trial court declined to apply those
factors because article X, section 2 and Water Code section 100
do not require the State Board to apply those factors. “The State
Board has discretion to consider any factors it deems appropriate
under the circumstances when undertaking a waste and
unreasonable use analysis.”6
The trial court concluded, “The State Board must conduct
an evaluation of the POTWs’ reasonable use of their wastewater.
In this evaluation, the relevant factors may include those raised
by the State Board and Real Parties of mandatory reporting, the
cost of recycling facilities, the scientific and legal limitations on
recycled water use, the beneficial uses of Los Angeles River flow,
and conservation efforts. Perhaps the State Board will conclude
that Real Parties are doing all they can to recycle, or perhaps the
State Board will conclude, as Waterkeeper hopes, that the State
Board should impose binding targets and timelines on the
POTWs. Whatever the conclusion, the State Board must
evaluate the reasonableness of the four POTWs[’] discharge of
300 [million gallons per day] of wastewater.”
The trial court continued, “The court will not dictate the
precise nature of this evaluation, except that the State Board
must consider all relevant factors, develop a factual record to
allow for judicial review of its decision, and explain how its
discretion was exercised by demonstrating a rational connection
6 The trial court noted that in its reply to the State Board’s
trial brief, Waterkeeper retreated from its position that the State
Board should apply the factors from the Board’s 1984 decision.
Waterkeeper instead “s[ought] only to compel the State Board to
analyze the discharges and consider all relevant factors in
sufficient detail to enable effective judicial review.”
31
between the factors considered, the choices made, and the
purposes of Article X, section 2 and [Water Code] section 100.”
The trial court entered four judgments and issued four
writs of mandate, one for each POTW. The State Board and real
party City of Burbank appealed from the judgments, and
Waterkeeper appealed from the judgments of dismissal in favor
of the Regional Board. We consolidated the appeals for purposes
of record preparation, briefing, argument, and decision.
The trial court later ordered the State Board to pay
Waterkeeper $737,932.84 in attorney fees under Code of Civil
Procedure section 1021.5. The State Board appealed from that
order, and we consolidated that appeal with the appeals from the
judgments for purposes of argument and decision.
6. First opinion and modification request
We issued our original opinion on February 27, 2023,
affirming the judgments in favor of the Regional Board and
reversing the judgments and writs of mandate against the State
Board. (Los Angeles Waterkeeper v. State Water Resources
Control Bd. (2023), previously published at 88 Cal.App.5th 874.)
The Boards filed a request for modification, asking that we
amend the opinion to avoid what they deemed as unnecessarily
deciding issues concerning the Regional Board’s authority to
regulate the unreasonable use of water, and to clarify that our
holding concerning the CEQA exemption under Water Code
section 13389 applies solely to the type of waste discharge
permits at issue in this case.7 On our own motion, we vacated
7 The Boards further requested we strike certain language
that the Boards contend overstated aspects of the trial court’s
32
our opinion and ordered rehearing, requesting that Waterkeeper
and City of Burbank file supplemental briefs responding to the
modification request. We resubmitted the cause upon receipt of
this additional briefing.
STANDARD OF REVIEW
We decide this appeal on the pleadings and demurrer,
without reaching the merits of the rulings after trial.
“We independently review the ruling on a demurrer and
determine de novo whether the pleading alleges facts sufficient to
state a cause of action.” (Santa Ana Police Officers Assn. v. City
of Santa Ana (2017) 13 Cal.App.5th 317, 323.) “[W]e accept as
true the well-pleaded allegations in [the] . . . complaint. ‘ “We
treat the demurrer as admitting all material facts properly
pleaded, but not contentions, deductions or conclusions of fact or
law. [Citation.]” ’ ” (Evans v. City of Berkeley (2006) 38 Cal.4th 1,
6.) “ ‘We are not bound by the trial court’s reasoning and may
affirm the judgment if correct on any theory.’ ” (Nede Mgmt. Inc.
v. Aspen American Ins. Co. (2021) 68 Cal.App.5th 1121, 1129–
1130.)
We review de novo the interpretation of constitutional and
statutory provisions. (Brookside Investments, Ltd. v. City of
El Monte (2016) 5 Cal.App.5th 540, 548, fn. 4.) “Our task is to
ruling, specifically language indicating the trial court ruled not
only that the Regional Board lacked authority to order the
POTWs to recycle more water, but also lacked authority to order
the POTWs to reduce their discharges. Because omission of the
challenged language does not affect our reasoning or holding, we
have removed it to avoid further controversy. We express no
opinion as to the Boards’ contention that the struck language was
in error.
33
ascertain the intent of the electorate or the Legislature, thereby
giving effect to the law’s purpose.” (Wunderlich v. County of
Santa Cruz (2009) 178 Cal.App.4th 680, 694.)
When construing a constitutional provision, we “ ‘ “look
first to the language of the constitutional text, giving the words
their ordinary meaning.” [Citation.] If the language is clear,
there is no need for construction. [Citation.] If the language is
ambiguous, however, we consider extrinsic evidence of the
enacting body’s intent.’ [Citation.]” (Professional Engineers in
California Government v. Kempton (2007) 40 Cal.4th 1016, 1037.)
Similarly, when construing a statute, “ ‘[w]e first examine
the statutory language, giving it a plain and commonsense
meaning.’ [Citation.] We do not consider statutory language in
isolation; instead, we examine the entire statute to construe the
words in context. [Citation.] If the language is unambiguous,
‘then the Legislature is presumed to have meant what it said,
and the plain meaning of the language governs.’ [Citation.] ‘If
the statutory language permits more than one reasonable
interpretation, courts may consider other aids, such as the
statute’s purpose, legislative history, and public policy.’
[Citation.]” (Kirzhner v. Mercedes-Benz USA, LLC (2020)
9 Cal.5th 966, 972.)
The parties dispute the extent to which we should defer to
agency interpretation of the constitutional and statutory
provisions at issue in this case. (See Yamaha Corp. of America v.
State Bd. of Equalization (1998) 19 Cal.4th 1.) Our own
interpretation of those provisions compels a holding in the State
and Regional Boards’ favor, and therefore we need not defer to
agency interpretation for purposes of this appeal.
34
DISCUSSION
A. Waterkeeper Has Failed Adequately To Plead Causes
of Action Under Article X, Section 2 and Water Code
Sections 100 and 275
1. Law governing writs of mandate
Waterkeeper sought and obtained from the trial court writs
of traditional mandate pursuant to Code of Civil Procedure
section 1085, subdivision (a), which empowers courts “to compel a
public agency or officer to perform a mandatory duty.” (Ellena v.
Department of Ins. (2014) 230 Cal.App.4th 198, 205 (Ellena).)8
“To state a cause of action for a writ of mandate, one must plead
facts showing (1) a clear duty to act by the defendant; (2) a
beneficial interest in the defendant’s performance of that duty;
(3) the defendant’s ability to perform the duty; (4) the defendant’s
failure to perform that duty or abuse of discretion if acting; and
(5) no other plain, speedy, or adequate remedy exists.” (Collins v.
Thurmond (2019) 41 Cal.App.5th 879, 915 (Collins).)
Mandamus is appropriate to compel a “ministerial” act,
that is, “ ‘an act that a public officer is required to perform in a
prescribed manner in obedience to the mandate of legal authority
and without regard to his [or her] own judgment or opinion
concerning such act’s propriety or impropriety, when a
given state of facts exists. . . . [Citation.]’ [Citations.]” (AIDS
Healthcare Foundation v. Los Angeles County Dept. of Public
8 Code of Civil Procedure section 1085, subdivision (a),
provides, in relevant part, “A writ of mandate may be issued by
any court . . . to compel the performance of an act which the law
specially enjoins, as a duty resulting from an office, trust, or
station . . . .”
35
Health (2011) 197 Cal.App.4th 693, 700 (AIDS Healthcare
Foundation).) Put another way, a ministerial act is one
“ ‘ “[w]here a statute or ordinance clearly defines the specific
duties or course of conduct that a governing body must take,” ’ ”
thus “ ‘ “eliminat[ing] any element of discretion.” ’ ” (Ellena,
supra, 230 Cal.App.4th at p. 205.)
In contrast, when the law imposes a duty but does not
direct how that duty should be carried out, mandamus “may not
issue to compel an agency to perform that legal duty in a
particular manner, or control its exercise of discretion by forcing
it to meet its legal obligations in a specific way.” (Marquez v.
State Dept. of Health Care Services (2015) 240 Cal.App.4th 87,
118–119 (Marquez); see Collins, supra, 41 Cal.App.5th at p. 915
[“ ‘ “the duty is discretionary if the [entity] must exercise
significant discretion to perform the duty” ’ ”].) Nonetheless,
“[m]andamus will lie to command the exercise of discretion, that
is, to compel some action.” (AIDS Healthcare Foundation, supra,
197 Cal.App.4th at p. 704, italics added.)
2. The law relied upon by Waterkeeper
The parties do not dispute that no law requires POTWs to
recycle water. Waterkeeper’s arguments instead rely on the
reasonable use doctrine embodied in article X, section 2 of the
California Constitution and Water Code sections 100 and 275.
The question presented in this appeal is whether those
constitutional and statutory provisions impose a legal duty on the
State and/or Regional Board to evaluate whether the discharges
of treated water from the four POTWs constitute a waste or
unreasonable use of water.
Article X, section 2, originally enacted in 1928 as
article XIV, section 3, amended the Constitution in response to
36
the Supreme Court’s decision in Herminghaus v. Southern
California Edison Co. (1926) 200 Cal. 81 (Herminghaus).
(National Audubon Society v. Superior Court (1983) 33 Cal.3d
419, 442–443 (National Audubon Society).)
Herminghaus addressed the competing water rights of
riparians—“those who possess water rights by virtue of owning
the land by or through which flowing water passes”—and
appropriators—“those who hold the right to divert such water for
use on noncontiguous lands.” (Light v. State Water Resources
Control Bd. (2014) 226 Cal.App.4th 1463, 1478 (Light); see
Herminghaus, supra, 200 Cal. at p. 103.) Herminghaus held
“that as between the riparian and the appropriator, the former’s
use of water was not limited by the doctrine of reasonable use.”
(National Audubon Society, supra, 33 Cal.3d at p. 442, citing
Herminghaus, at pp. 100–101.)
Article X, section 2 amended the Constitution “effectively to
overrule Herminghaus.” (Light, supra, 226 Cal.App.4th at
p. 1479.) It provides, in relevant part, “It is hereby declared that
because of the conditions prevailing in this State the general
welfare requires that the water resources of the State be put to
beneficial use to the fullest extent of which they are capable, and
that the waste or unreasonable use or unreasonable method of
use of water be prevented, and that the conservation of such
waters is to be exercised with a view to the reasonable and
beneficial use thereof in the interest of the people and for the
public welfare. The right to water or to the use or flow of water
in or from any natural stream or water course in this State is and
shall be limited to such water as shall be reasonably required for
the beneficial use to be served, and such right does not and
shall not extend to the waste or unreasonable use or
37
unreasonable method of use or unreasonable method of diversion
of water. . . . This section shall be self-executing, and the
Legislature may also enact laws in the furtherance of the policy
in this section contained.”9
The effect of the amendment was to “abolish[ ] the right of
a riparian to devote water to unreasonable uses, and established
the doctrine of reasonable use as an overriding feature of
9 The full text reads, “It is hereby declared that because of
the conditions prevailing in this State the general welfare
requires that the water resources of the State be put to beneficial
use to the fullest extent of which they are capable, and that the
waste or unreasonable use or unreasonable method of use of
water be prevented, and that the conservation of such waters is
to be exercised with a view to the reasonable and beneficial use
thereof in the interest of the people and for the public welfare.
The right to water or to the use or flow of water in or from any
natural stream or water course in this State is and shall be
limited to such water as shall be reasonably required for the
beneficial use to be served, and such right does not and shall not
extend to the waste or unreasonable use or unreasonable method
of use or unreasonable method of diversion of water. Riparian
rights in a stream or water course attach to, but to no more than
so much of the flow thereof as may be required or used
consistently with this section, for the purposes for which such
lands are, or may be made adaptable, in view of such reasonable
and beneficial uses; provided, however, that nothing herein
contained shall be construed as depriving any riparian owner of
the reasonable use of water of the stream to which the owner’s
land is riparian under reasonable methods of diversion and use,
or as depriving any appropriator of water to which the
appropriator is lawfully entitled. This section shall be self-
executing, and the Legislature may also enact laws in the
furtherance of the policy in this section contained.” (Cal. Const.,
art. X, § 2.)
38
California water law.” (National Audubon Society, supra,
33 Cal.3d at p. 442.) Article X, section 2 “does more than merely
overturn Herminghaus—it establishes state water policy. All
uses of water . . . must now conform to the standard of reasonable
use.” (National Audubon Society, at p. 443.)
Our Supreme Court has characterized article X, section 2
as containing “proscriptions against unreasonable uses and
unreasonable methods of diverting water.” (Environmental
Defense Fund, Inc. v. East Bay Mun. Utility Dist. (1980) 26 Cal.3d
183, 198 (Environmental Defense Fund.) Because those
proscriptions are self-executing, courts are empowered to enforce
them even in the absence of implementing legislation. (Ibid.; see,
e.g., Joslin v. Marin Mun. Water Dist. (1967) 67 Cal.2d 132, 141
(Joslin) [Supreme Court held use of stream water “to expose or to
carry and deposit sand, gravel and rock, is as a matter of law
unreasonable”]; Tulare Dist. v. Lindsay-Strathmore Dist. (1935)
3 Cal.2d 489, 568 [Supreme Court determined that irrigating
fields in winter to kill gophers “cannot be held to be a reasonable
beneficial use”].)
Article X, section 2 by its express language also authorizes
the Legislature to “enact laws in the furtherance of” the
prevention of waste and unreasonable use of water. (See
California Trout, Inc. v. State Water Resources Control Bd. (1989)
207 Cal.App.3d 585, 625 [“there is ‘broad legislative authority for
the conservation and regulation of scarce water resources’ ”].)
Courts have interpreted this authority to allow the Legislature
“to enact statutes which determine the reasonable uses of water.”
(Ibid.)
The 1928 constitutional amendment did not itself expand
the authority of the State Board, which at the time was, “a
39
ministerial body with the limited task of determining priorities
between claimants seeking to appropriate unclaimed water.”
(National Audubon Society, supra, 33 Cal.3d. at p. 443.)
Subsequent legislative enactments and judicial decisions,
however, have “greatly enhanced the power of the [State] Board
to oversee the reasonable use of water.” (Id. at pp. 443–444.)
For example, the Legislature has delegated to the State
Board the “adjudicatory and regulatory functions of the state in
the field of water resources.” (Wat. Code, § 174, subd. (a).)
Courts have held this delegated power authorizes the State
Board both to adjudicate and regulate the unreasonable use of
water. (Imperial Irrigation Dist. v. State Water Resources Control
Bd. (1986) 186 Cal.App.3d 1160, 1163 [State Board “has
adjudicatory power in the matter of unreasonable use of water”];
Light, supra, 226 Cal.App.4th at p. 1485 [State Board’s “grant of
authority to ‘exercise the . . . regulatory functions of the state
([Wat. Code,] § 174) necessarily includes the power to enact
regulations governing the reasonable use of water”].) The State
Board’s adjudicatory jurisdiction over unreasonable use is
concurrent with the courts’ jurisdiction. (Environmental Defense
Fund, supra, 26 Cal.3d at p. 200.)
Further defining the State Board’s role in regard to the
reasonable use doctrine, Water Code section 275 provides, “The
[Department of Water Resources] and [State Board] shall take all
appropriate proceedings or actions before executive, legislative,
or judicial agencies to prevent waste, unreasonable use,
unreasonable method of use, or unreasonable method of diversion
of water in this state.”
Water Code section 100, enacted in 1943, merely repeats
verbatim the first two sentences of article X, section 2. Apart
40
from lacking the force of a constitutional provision, the parties
do not suggest Water Code section 100 is subject to different
interpretation than article X, section 2.
Article X, section 2 does not define what constitutes an
unreasonable use of water, nor have the courts or the Legislature
provided a definition. (See Light, supra, 226 Cal.App.4th at p.
1479.) Our Supreme Court has said, “[W]hat is a reasonable use
of water depends on the circumstances of each case . . . .” (Joslin,
supra, 67 Cal.2d at p. 140.) The court cautioned, however, that
“such an inquiry cannot be resolved in vacuo isolated from
statewide considerations of transcendent importance,” including
“the ever increasing need for the conservation of water in this
state, an inescapable reality of life quite apart from its express
recognition in [article X, section 2].” (Joslin, at p. 140.) The court
also instructed that a “beneficial” use is not necessarily a
“reasonable” use, noting article X, section 2 expressly limits
water rights to “ ‘such water as shall be reasonably required for
the beneficial use to be served.’ ” (Joslin, at p. 143.)10
3. The Regional Board does not have a duty to
evaluate whether discharges of treated
wastewater are an unreasonable use of water
As set forth above, prior case law has focused on article X,
section 2, and by extension Water Code 100, as a prohibition on
10 In National Audubon Society, the Supreme Court raised
the question whether the test for unreasonable use “refer[s] only
to inordinate and wasteful use of water . . . or to any use less
than the optimum allocation of water?” (Supra, 33 Cal.3d at
p. 447, fn. 28.) Because the court resolved that case on other
grounds, it declined to answer the question. (Ibid.)
41
waste and unreasonable use of water, a prohibition that
empowers courts, the Legislature, and the State Board to
adjudicate and regulate unreasonable use. Waterkeeper urges us
to extend that constitutional provision also to impose a duty on
regulatory authorities, in this case the State and Regional
Boards, to evaluate whether a particular use of water is
reasonable before issuing a wastewater discharge permit.11
We conclude the Regional Board has no duty under article
X, section 2 or Water Code sections 100 and 275 to prevent the
unreasonable discharge from the POTWs. As discussed, to
establish entitlement to mandamus, the petitioner must show the
defendant agency has the “ability to perform the duty” at issue.
(Collins, supra, 41 Cal.App.5th at p. 915.) As we explain, the
Legislature did not empower the Regional Board to enforce the
mandates of article X, section 2 when issuing wastewater
discharge permits.
As the trial court correctly concluded, the Regional Board’s
role in state water law is to regulate water quality, that is, to
ensure the state’s waters are sufficiently free of pollutants to be
safe for their intended uses. (Wat. Code, § 13001 [regional water
quality control boards, along with State Board, are “principal
state agencies with primary responsibility for the coordination
and control of water quality”; id., § 13050, subd. (g) [defining
11 City of Burbank argues the discharge of treated
wastewater is not a “ ‘use’ of water” as that term is used in article
X, section 2, and therefore “the discharge of treated wastewater
does not fall within the ambit of” the doctrine of reasonable use.
We leave this issue for another day, and assume arguendo the
discharge of treated wastewater is subject to the doctrine of
reasonable use.
42
“ ‘[q]uality of the water’ ” as “chemical, physical, biological,
bacteriological, radiological, and other properties and
characteristics of water which affect its use”].)
We have found nothing in the Water Code suggesting the
Regional Board’s role in regulating water quality includes the
regulation of wasteful or unreasonable use of water. The
Regional Board is responsible for formulating and adopting water
quality control plans (Wat. Code, § 13240), which, as the trial
court noted, do not include an assessment of waste or
unreasonable use (id., § 13050, subd. (j)). Water Code
section 13241 lays out a nonexclusive list of considerations in
“establish[ing] water quality objectives,” none of which includes
an assessment of waste and unreasonable use.
Wastewater discharge permits center on water quality. In
issuing those permits, the relevant statute provides the Regional
Board “shall implement any relevant water quality control plans
that have been adopted, and shall take into consideration the
beneficial uses to be protected, the water quality objectives
reasonably required for that purpose, other waste discharges,
the need to prevent nuisance,[12] and the provisions of
Section 13241.” (Wat. Code, § 13263, subd. (a).) The statute
does not mention the waste or unreasonable use of water.
Whereas the Water Code broadly delegates to the State
Board “the adjudicatory and regulatory functions of the state in
12 “ ‘Nuisance’ ” in this context refers to waste treatment or
disposal that “[i]s injurious to health, or is indecent or offensive
to the senses, or an obstruction to the free use of property,” and
“[a]ffects at the same time an entire community or neighborhood,
or any considerable number of persons.” (Wat. Code, § 13050,
subd. (m).)
43
the field of water resources” (Wat. Code, § 174), as well as the
power to “take all appropriate proceedings or actions . . . to
prevent waste [and] unreasonable use” of water (id., § 275),
nothing in the Water Code grants the Regional Board equivalent
powers. Indeed, wastewater treatment plants must seek State
Board approval before the plants make any change in their use of
treated wastewater that reduces the flow into a watercourse.
(See id., § 1211.)13 Logically, recycling would produce such a
reduction, and therefore would require State Board approval.
We acknowledge that one factor the Regional Board is to
consider under Water Code section 13241 when establishing
water quality objectives is “[t]he need to develop and use recycled
water.” (Wat. Code, § 13241, subd. (f).) We do not read this
provision as empowering or requiring the Regional Board to
assess unreasonable use of water. Rather, by its terms, Water
Code section 13241, subdivision (f) requires the Regional Board to
consider how its water quality objectives would impact the
development and use of recycled water. Waterkeeper makes no
argument to the contrary, nor does it discuss this provision in its
appellate briefing. Instead, it merely quotes this subdivision in
its response to the Boards’ request for modification and offers no
argument that Water Code section 13241, subdivision (f)
13 Water Code section 1211 provides, in relevant part, that
“[p]rior to making any change in the point of discharge, place of
use, or purpose of use of treated wastewater, the owner of
any wastewater treatment plant shall obtain approval of the
[State Board] for that change.” (Wat. Code, § 1211, subd. (a).)
This requirement “does not apply to changes in the discharge or
use of treated wastewater that do not result in decreasing the
flow in any portion of a watercourse.” (Id., subd. (b).)
44
comprises an independent obligation to do an unreasonable use
analysis. Waterkeeper’s cited cases merely confirm that the
Regional Board must take the factors under Water Code
section 13241 into account when issuing waste discharge
permits—they do not address or interpret subdivision (f). (See
City of Burbank, supra, 35 Cal.4th at p. 625; City of Arcadia v.
State Water Resources Control Bd. (2010) 191 Cal.App.4th 156,
178.)
In sustaining the demurrer in favor of the Regional Board,
the trial court similarly found that the Regional Board’s role is to
protect water quality, not to regulate unreasonable use, and the
Regional Board lacks the authority to compel the POTWs to
recycle more water. In its appellate briefing, Waterkeeper
does not contest these findings. Rather, it argues that as a
constitutional mandate, article X, section 2 necessarily applies to
all government actors. Waterkeeper cites case law holding that
“all branches of government are required to comply with
constitutional directives,” and “in the absence of express
language to the contrary, every constitutional provision is self-
executing in the sense that agencies of government are prohibited
from taking official actions that contravene constitutional
provisions.” (Leger v. Stockton Unified School Dist. (1988)
202 Cal.App.3d 1448, 1454 (Leger); see Katzberg v. Regents of
University of California (2002) 29 Cal.4th 300, 306–307
(Katzberg); State Board of Education v. Levit (1959) 52 Cal.2d
441, 460–463 (Levit).)
We do not dispute that government actors are bound by the
self-executing proscriptions of article X, section 2, and therefore
can be held accountable in court or before the proper
administrative agencies if they use water in a wasteful and
45
unreasonable manner. (See, e.g., Elmore v. Imperial Irrigation
Dist. (1984) 159 Cal.App.3d 185, 197 [in mandamus action,
farmer properly stated claim that irrigation district had duty
under article X, section 2 and other statutes “to avoid wasting
water, prevent flooding resulting from its irrigation practices and
provide drainage made necessary by its activities”].) Thus, as a
general matter, Waterkeeper theoretically could invoke article X,
section 2 to bring an action directly against a party that is
wasting water.
Waterkeeper, however, does not allege that the Regional
Board is wasting water—rather, Waterkeeper alleges the
Regional Board has failed to prevent the POTWs from wasting
water. Yet nothing in article X, section 2 or the Water Code
empowers the Regional Board, a body expressly tasked to
regulate water quality, also to prevent the unreasonable use of
water by POTWs. Waterkeeper thus seeks to impose a duty on
the Regional Board to regulate unreasonable use that is beyond
the powers the Legislature gave it.
The language and legislative history of article X, section 2
do not support Waterkeeper’s expansion of the Regional Board’s
duties. Article X, section 2 states that “the general welfare
requires . . . that the waste or unreasonable use . . . of water be
prevented,” but it does not identify any particular official or
agency responsible for preventing waste or unreasonable use.
Rather, it empowers the courts to enforce the proscription on
unreasonable use, and allows the Legislature to “enact laws in
the furtherance” of the provision’s policies.
We interpret this broad language to grant the Legislature
discretion as to how to carry out the principles of article X,
section 2, including designating the officials or agencies
46
responsible for doing so. (See Fullerton v. State Water Resources
Control Bd. (1979) 90 Cal.App.3d 590, 597 (Fullerton) [article X,
section 2 “clearly and expressly delegates to the Legislature the
task of ascertaining how this constitutional goal should be
carried out”].) As we have explained, the Legislature has given
the State Board such authority, but has not granted similar
authority to the Regional Board. The Regional Board’s purpose
in granting wastewater discharge permits is to determine how
much treated wastewater a POTW safely may discharge, not
whether the POTW could put the treated wastewater to better
use. We will not override the Legislature’s determination in the
absence of clear constitutional language to the contrary.
Compelling the Regional Board to conduct a reasonable use
assessment on the POTWs would be especially problematic
because the reuse of wastewater raises issues our Supreme Court
has held are uniquely within the province of the State Board.
While recognizing that “courts had traditionally exercised
jurisdiction of claims of unreasonable water use,” the court
nonetheless held that “causes of action seeking to compel [a]
defendant to reclaim waste waters must in the first instance be
addressed to the [State Board].” (Environmental Defense Fund,
supra, 26 Cal.3d at p. 187, fn. 1, 199.) The court based this
conclusion on the “statutory regulation of such reclamation, the
potential dangers to public health, the problems of feasibility of
reclamation, and the complexity of the issues.” (Id. at p. 199.)
In short, it makes little sense to read article X, section 2 to
impose a duty on the Regional Board that both our Legislature
and Supreme Court have determined is the province of the State
Board. A ruling in Waterkeeper’s favor would expand the
Regional Board’s role and change the nature of the wastewater
47
discharge permitting process without any underlying authority or
guidance as to how the Regional Board should comply.
Waterkeeper’s cited cases, although stating the principle
that all government actors must comply with constitutional
directives, address entirely different issues than those present
here. Nor do they hold or suggest that all government actors
must enforce constitutional directives against others. We discuss
each of Waterkeeper’s cases in turn.
In Leger, a high school student sued a school district and its
employees for money damages after a nonstudent attacked the
student in a school restroom. (Supra, 202 Cal.App.3d at
pp. 1452–1453.) The student argued the constitutional right to
safe, secure, and peaceful school campuses is self-executing and
thus provides a right to money damages for its violation. (Id. at
pp. 1453–1454.)
The appellate court acknowledged that “in the absence of
express language to the contrary, every constitutional provision
is self-executing in the sense that agencies of government are
prohibited from taking official actions that contravene
constitutional provisions.” (Leger, supra, 202 Cal.App.3d at
p. 1454, italics omitted.) The question presented by the student’s
argument, however, was whether the constitutional right to safe
schools “is ‘self-executing’ in a different sense,” namely whether
that constitutional provision “provides any rules or procedures by
which its declaration of rights is to be enforced, and, in
particular, whether it provides citizens with a specific remedy by
way of damages for its violation in the absence of legislation
granting such a remedy.” (Ibid.)
The appellate court concluded the constitutional provision
at issue did not provide for money damages, because it “declares
48
a general right without specifying any rules for its enforcement.
It imposes no express duty on anyone to make schools safe. It is
wholly devoid of guidelines, mechanisms, or procedures from
which a damages remedy could be inferred. Rather, ‘ “it merely
indicates principles, without laying down rules by means of
which those principles may be given the force of law.” ’ . . .
[Citation].” (Leger, supra, 202 Cal.App.3d at p. 1455.)
Similar to Leger, in Katzberg, the Supreme Court addressed
whether the due process clause of the state constitution entitles a
party to money damages for a violation of that clause. (Katzberg,
29 Cal.4th at p. 307.) In that case, a professor of medicine
alleged he was entitled to damages after a university removed
him from a department chairmanship without providing a timely
name-clearing hearing, in violation of his liberty interest under
the due process clause. (Id. at p. 303.)
The Supreme Court stated that “ ‘[e]very constitutional
provision is self-executing’ ” in the sense “ ‘that everything done
in violation of it is void.’ [Citation.]” (Katzberg, supra, 29 Cal.4th
at p. 307.) Thus, the due process clause “supports an action,
brought by a private plaintiff against a proper defendant, for
declaratory relief or for injunction.” (Ibid.) The court held,
however, that the due process clause did not provide for a money
damages remedy. (Id. at p. 329.) The court favorably cited to
Leger in noting that the due process clause lacks “ ‘guidelines,
mechanisms, or procedures from which a damages remedy could
be inferred’ ” and instead “ ‘reflects general principles “ ‘ “without
laying down rules by means of which those principles may be
given the force of law.” ’ ” [Citation.]’ [Citation.]” (Katzberg, at
p. 321.)
49
Levit addressed whether the Legislature could enact
legislation limiting the State Board of Education’s constitutional
authority to select textbooks. (Supra, 52 Cal.2d at p. 459.) In
that case, the Legislature prohibited funding for certain science
textbooks selected by the State Board of Education for
elementary school grades, and the Department of Finance then
refused to pay to print those textbooks. (Id. at pp. 446–447.)
Noting, inter alia, case law affirming that all government actors
must comply with constitutional provisions, and further that the
legislature may not alter powers conferred on a body by the
Constitution (id. at pp. 460–461), the Supreme Court concluded
legislation prohibiting funding for specific textbooks was
unconstitutional (id. at p. 466).
Leger and Katzberg both state the principle that
constitutional provisions are self-executing and binding on all
government actors, but did not apply that principle because it
did not answer the issue before them, namely the availability of
money damages for constitutional violations. The analysis in
Leger and Katzberg therefore is not instructive on the issues
presented in the instant case. If anything, Katzberg and Leger
counsel against expanding the reach of constitutional provisions
that state general principles without guidelines, mechanisms, or
procedures for their enforcement. Levit concerned the limits of
the Legislature’s authority to intrude upon powers
constitutionally delegated to another government body, and
similarly is not instructive on the issues here.
Waterkeeper argues it should be left to the State Board and
Regional Board how to carry out the duty under article X,
section 2, and by dismissing the Regional Board from the
mandamus action, the trial court improperly limited the State
50
Board’s options for doing so. Because we conclude in the next
section Waterkeeper failed adequately to plead entitlement to
mandamus against the State Board as well, we need not address
this argument.
As noted earlier, in its original appellate briefing,
Waterkeeper did not address or challenge the trial court’s
conclusion that the Regional Board’s role was to protect water
quality, not regulate unreasonable use, and therefore lacked the
authority to compel the POTWs to recycle more water. In
response to the Boards’ modification request, however,
Waterkeeper cites a 1974 opinion by the Attorney General
concluding that when prescribing waste discharge requirements
under the Porter-Cologne Act, the State Board and regional
water quality control boards are “not limited to establishing
requirements which will protect only water quality and prevent
nuisances.” (57 Ops.Cal.Atty.Gen. 19, 20 (1974).)14 Rather, the
State and regional boards “not only can, but must consider the
effects of a proposed discharge upon all aspects of the
environment.” (Ibid.) In support, the Attorney General opinion
cites expressions of legislative intent to protect the environment
in CEQA and elsewhere, which the Attorney General opinion
characterizes as “legislative mandates directing that ‘ . . . highest
priority shall be given to environmental considerations . . . .’ ”
(Id. at pp. 20–21, quoting County of Inyo v. Yorty (1973) 32
Cal.App.3d 795, 804.)
We have no occasion to quarrel with, or decide the validity
of the proposition advanced by the Attorney General opinion, to
14 We are not bound by the opinions of the Attorney
General, “ ‘but they are entitled to “great respect.” ’ ” (Towner v.
County of Ventura (2021) 63 Cal.App.5th 761, 773.)
51
wit, that the Boards must consider more than just water quality
and nuisance when prescribing waste discharge requirements.
That general proposition, however, does not answer the questions
presented in this appeal. The Attorney General opinion speaks of
the State Board and regional water quality control boards
collectively, without distinguishing their differing roles and
obligations, differences that are key to our holding and the trial
court’s ruling in the instant case. The Attorney General opinion
does not explain what it means to “consider” environmental
concerns beyond water quality and nuisance, and therefore offers
nothing to suggest the Regional Board’s environmental
consideration in the instant case was inadequate. Certainly, the
opinion does not address the Boards’ obligations, if any,
concerning reuse of recycled wastewater, and predates significant
legal developments in that area, such as the Supreme Court
ruling that the State Board has primary jurisdiction in actions to
compel an entity to reclaim more wastewater. (Environmental
Defense Fund, supra, 26 Cal.3d at p. 187, fn. 1, 199.) In short,
given the vintage and generality of the Attorney General opinion,
we fail to discern how the opinion is instructive in resolving the
matters before us.
Also in its response to the modification request,
Waterkeeper argues the Water Code sections empowering the
State Board to regulate unreasonable use of water grant “similar
authority” to the Regional Board. We have found nothing in the
Water Code or case law supporting this proposition, nor has
Waterkeeper or the other parties identified any such authority.
Finally, we turn to the primary issue raised by the Boards
in their modification request. The Boards contend that there
have been “decades of coordination between regional water
52
quality control boards . . . and the State Board regarding
waste/unreasonable use issues and water quality issues.” (Fn.
omitted.) The Boards argue that our conclusions regarding the
Regional Board’s authority to regulate unreasonable use of water
could “undermine” those coordinated efforts. The Boards ask us
to omit from the opinion language limiting the Regional Board’s
authority to regulate unreasonable use. In the alternative, the
Boards request that we clarify we are not deciding whether the
regional water quality control boards could regulate the
unreasonable use of water if so authorized by the State Board.
Neither the Boards in their modification request nor the
other parties in their responses to that request identify any
statutory or case authority undercutting our conclusion that the
Legislature has empowered the State Board, but not the Regional
Board, to regulate whether the POTWs’ discharges constitute an
unreasonable use of water. We, however, grant the Boards’
alternative request to make clear that we express no opinion as
to whether the State Board may direct or authorize the regional
water quality control boards to take actions related to preventing
the waste or unreasonable use of water in coordination with the
State Board’s efforts in this regard. We have no occasion to
express an opinion on that question. Neither in its original
briefing nor in its response to the Boards’ modification request,
has Waterkeeper identified any such direction or authorization
by, or coordination with, the State Board regarding the Regional
Board in this case.
4. Waterkeeper has not adequately pleaded a
cause of action against the State Board
The basis upon which we absolve the Regional Board of a
duty to assess the POTWs’ discharges for waste and
53
unreasonable use does not apply to the State Board, which
unquestionably has the authority and expertise to make such an
assessment. The parties discuss at length in their briefing
whether the State Board has a duty under article X, section 2 and
Water Code sections 100 and 275 to prevent unreasonable use of
water. We need not decide, however, whether the State Board
has a duty, because even if it does, we conclude Waterkeeper has
failed to plead facts establishing a derogation of that duty
justifying issuing a writ of mandamus. For purposes of our
discussion, therefore, we will assume arguendo the State Board
has a duty to prevent waste and unreasonable use of water under
article X, section 2 and Water Code sections 100 and 275.
As the trial court found, and Waterkeeper does not dispute,
whatever duty article X, section 2 and the Water Code impose on
the State Board to prevent waste and unreasonable use of water,
the duty is highly discretionary. Article X, section 2 and the
identical language in Water Code 100 simply state that the
general welfare requires that unreasonable use of water “be
prevented,” without any directives as to how or under what
circumstances the government should execute that policy. Thus,
to the extent those provisions impose a duty, they do not limit the
State Board’s discretion as to when and how to satisfy that duty.
Water Code section 275 provides the State Board “shall
take all appropriate proceedings or actions” to prevent
unreasonable use of water. As the trial court correctly found, this
language leaves to the State Board’s discretion the determination
of what “proceedings or actions” are “appropriate.” (See F & P
Growers Assn. v. Agricultural Labor Relations Bd. (1985)
168 Cal.App.3d 667, 679–680 [statutory language providing that
government board “shall” provide certain relief “when the board
54
deems such relief appropriate” “indicate[s] the imposition of the
remedy is discretionary”]; cf. AIDS Healthcare Foundation,
supra, 197 Cal.App.4th at pp. 701–702 [statutory language
providing that health officers “ ‘shall take measures as may be
necessary to prevent the spread of . . . disease’ ” leaves to the
officers’ discretion what measures are necessary].)15
Interpreting article X, section 2 and Water Code
sections 100 and 275 to grant the State Board broad discretion is
also a practical necessity. The State Board does not have
unlimited resources, and cannot possibly investigate or prevent
all unreasonable use of water in the state. Deciding where to
direct its resources necessarily is a matter for the State Board’s
discretion, absent clear directives from the Legislature or other
legal authority.16
15 In its response to the Boards’ modification petition,
Waterkeeper argues our reading of Water Code section 275
conflicts with federal courts’ interpretation of the phrase
“appropriate action” as used in a federal statute concerning
equality in educational opportunities. Waterkeeper fails to
explain why federal decisions interpreting federal statutes should
override the state authority cited in this opinion. This argument,
moreover, is outside the scope of our rehearing order, which
sought briefing solely on the issues raised in the Boards’
modification request. Waterkeeper could have, but did not, raise
this argument in its original briefing. We therefore deem it
forfeited.
16 As an example of a statute constraining the State
Board’s discretion, when entities apply to the State Board for
permits to appropriate water, the Legislature has directed that
the State Board’s “duties and responsibilities over appropriative
rights include insuring that they meet the mandate of article X,
55
The trial court recognized the State Board’s broad
discretion, and further recognized it could not compel the
State Board through mandamus to exercise its discretion in
any particular manner. (Marquez, supra, 240 Cal.App.4th at
pp. 118–119.) The trial court nonetheless concluded mandamus
was appropriate because Waterkeeper pleaded, and ultimately
proved to the court’s satisfaction at trial, that the State Board
had not exercised its discretion at all in regard to the discharges
of the four POTWs. In the trial court’s view, although it could not
compel the State Board to act in any particular way in regard to
the four POTWs, the court could compel the State Board to act in
the first place.
The trial court erred in reaching this conclusion. As
discussed, to the extent article X, section 2 and Water Code
sections 100 and 275 impose a duty on the State Board to prevent
the waste of water, those provisions, as a matter of language and
practical necessity, do not require the State Board to prevent all
waste or any particular instance of waste or dictate how to
prevent waste. Certainly those provisions do not refer to
wastewater treatment plants, discharges from those plants,
water recycling, or NPDES permits, and therefore cannot be read
to limit the State Board’s discretion as to whether to direct its
resources towards conserving water through recycling treated
wastewater as opposed to other means within the State Board’s
portfolio.
section 2.” (Environmental Defense Fund, supra, 26 Cal.3d at
p. 195, citing Wat. Code, § 1050.) Appropriation is a method by
which an entity may obtain a right to use water. (Wat. Code,
§ 102.) Appropriative rights are not at issue in this case.
56
Despite the State Board’s broad discretion, Waterkeeper’s
writ petitions seek to compel the State Board to direct its
investigatory and enforcement efforts at particular discharges of
water that Waterkeeper believes are wasteful. This is beyond the
scope of mandamus, which cannot compel an agency to exercise
its discretion in a particular way.
It is true a court may issue a writ of mandamus to compel
some action when an agency has failed to exercise its discretion
at all. (AIDS Healthcare Foundation, supra, 197 Cal.App.4th at
p. 704.) Waterkeeper did not allege, however, nor did the trial
court find, that the State Board had taken no action to prevent
the waste of water. Rather, Waterkeeper alleged, and the court
found, the State Board had taken no action in regard to these
particular POTWs, and this was enough to justify mandamus.
In finding the State Board failed in its duty to prevent
waste by failing to investigate the discharges from the four
POTWs, the trial court obfuscated the distinction between a
mandatory duty and a discretionary duty. Again, article X,
section 2 and Water Code sections 100 and 275 do not require the
State Board to take action against any particular waste of water,
and therefore do not impose a mandatory duty on the State Board
to investigate or prevent waste by the POTWs.
Thus, the fact that the State Board has taken no action to
prevent a particular waste is insufficient to establish that the
State Board is in derogation of a general duty to prevent waste.
This is because allegations or evidence that the State Board has
not prevented a particular instance of waste does not establish
the State Board has not exercised its discretion to prevent waste
through other actions. Even if the State Board ignored the
POTWs’ discharges completely, choosing instead to focus on, for
57
example, the unreasonable use of water by irrigation districts, or
utilities, or residential water users, nothing in article X, section 2
or Water Code sections 100 and 275 suggests this would exceed
the State Board’s discretion.
Alejo v. Torlakson (2013) 212 Cal.App.4th 768 (Alejo) is
instructive. The plaintiffs in that case sought a writ of mandate
compelling state educational authorities “to rescind a suspension
of onsite reviews of school district compliance with state and
federal standards in programs benefitting educationally
disadvantaged students.” (Id. at p. 773.) The plaintiffs relied in
part on title 20 of the United States Code section 1703(f), a
provision of the federal Equal Education Opportunities Act of
1974 (EEOA), which required states “ ‘to take appropriate action
to overcome language barriers that impede equal participation by
its students in its instructional programs,’ ” as well as federal
regulations requiring states to monitor school districts to ensure
compliance with federal law. (Alejo, at pp. 774, 781.)
The Court of Appeal affirmed the trial court’s conclusion
that the suspension of onsite monitoring did not give rise to a
cause of action under federal law. (Alejo, supra, 212 Cal.App.4th
at pp. 781–782.) The appellate court noted, “The EEOA nowhere
requires that states maintain an onsite monitoring program,” and
therefore determining “[w]hether defendants are fulfilling their
‘appropriate action’ obligation under the EEOA by performing
adequate monitoring of districts would require a thorough
examination of all of defendants’ monitoring activities in order to
determine whether they have abused their discretion.” (Id. at
p. 781.) The plaintiffs, however, in both their pleadings and
presentation of evidence “have focused solely on onsite
monitoring,” which the court characterized as a “myopic view.”
58
(Ibid.) “By failing to make allegations in their complaint about
defendants’ other monitoring activities, and by failing to create a
full evidentiary record concerning them, plaintiffs make it
impossible for any court to determine whether defendants’
monitoring activities violate federal law because they do not
constitute ‘appropriate action.’ ” (Ibid.)
Waterkeeper’s allegations, and the trial court’s ruling,
similarly are “myopic,” focusing solely on the State Board’s lack
of action in regard to the four POTWs. Just as the Alejo plaintiffs
failed to plead or offer evidence concerning the educational
authorities’ monitoring efforts apart from onsite reviews,
Waterkeeper’s pleadings are devoid of any allegations concerning
the State Board’s efforts to prevent unreasonable use of water
apart from evaluating the POTWs’ discharges. Thus, even if
Waterkeeper’s allegations of the State Board’s inaction regarding
the POTWs were true, those allegations would be insufficient to
demonstrate the State Board has taken no action to prevent
unreasonable use.
In its ruling on the demurrer, the trial court relied on
Collins, a case that distinguishes Alejo. (Collins, supra,
41 Cal.App.5th at p. 918.) The trial court offered Collins as an
illustration of a derogation of a highly discretionary duty
justifying mandamus. As we explain, the allegations in Collins
are distinguishable from those in the instant case.
In Collins, similar to Alejo, the plaintiffs sought a writ of
mandate based on duties imposed by federal law on state
educational authorities “to monitor their school systems for
compliance with federal equal protection requirements.” (Collins,
supra, 41 Cal.App.5th at p. 917.) The plaintiffs alleged a
particular school district had “failed to submit the data required
59
of them for the 2011–2012 school year, yet the [state educational
authorities] ‘have taken no action to procure that data and have
failed to implement any program or process for ensuring that the
data is accurately submitted to sanction [the school district] or
other districts that fail to do so.’ ” (Id. at p. 918.)
Contrasting these allegations to those in Alejo, the Court of
Appeal stated, “[A]ppellants are not contesting only one portion
of the [monitoring] program. Rather, they are alleging that the
[state educational authorities], having a mandatory duty to
monitor for compliance with federal law, have abused their
discretion to do so by failing to implement any review of the
program they implemented to ensure they are receiving the data
necessary to meet their duty. This holistic attack on the [state
educational authorities’] use of their discretion when
implementing the law . . . is sufficient to state a claim.” (Collins,
supra, 41 Cal.App.5th at p. 918.)
Unlike in Collins, in which the plaintiffs alleged the
defendants had failed to remedy deficiencies in their statewide
program to monitor school districts, Waterkeeper made no such
allegations concerning the State Board’s statewide efforts to
prevent unreasonable use of water, but instead, focused solely on
the State Board’s actions in regard to the four POTWs. This is
not a “holistic attack,” but an attack on “only one portion” of the
State Board’s portfolio. (Collins, supra, 41 Cal.App.5th at p. 918.)
We also observe that Collins was based on the state’s
specific, mandatory duty under federal law to monitor all school
districts for compliance with federal law. As we have discussed,
article X, section 2 and Water Code sections 100 and 275 do not
impose a mandatory duty on the State Board to monitor or
inspect wastewater treatment plants to ensure their discharges
60
are reasonable—rather, the State Board has discretion on which
water users to focus its efforts to prevent waste and unreasonable
use of water. Whereas in Collins a failure adequately to monitor
school districts justified mandamus, the State Board’s choice not
to assess particular water users, or even a particular class of
water users, for waste and unreasonable use falls within its
discretion and is not subject to mandamus.
The trial court recognized, “The State Board has discretion
as to when and how it will enforce its constitutional duty,” and
“this discretion imposes no duty to address unreasonable use in
the vast majority of circumstances.” The trial court found an
abuse of discretion in this particular case, however, because of
the size of the discharges at issue, stating, “[T]he issue is one of
degree, and the difference in degree between this case and almost
all other circumstances is so large as to be different in kind.”
The trial court cited no authority in support of the
conclusion that a particularly large potential waste of water
transforms a discretionary duty into a mandatory one, nor are we
aware of any. Nothing in the language of article X, section 2 or
Water Code sections 100 and 275 obliges the State Board to
address discharges above a certain size.
The trial court’s rule, moreover, is not a workable legal
standard. Neither the trial court nor Waterkeeper offers any
framework by which to measure whether a particular water
discharge is sufficiently large to trigger the State Board’s
otherwise discretionary duty to prevent waste. Without such a
framework, both the State Board and water users would have no
way to know when the State Board’s duty is triggered until an
action is brought and a court decides whether the discharge is
large enough. Not only would this leave the State Board in limbo
61
as to the scope of its obligations, it would also effectively give
courts carte blanche to determine where the State Board must
direct its attention. Although the trial court believed the POTWs
were “unique” in their quantity of discharge, and therefore its
ruling would not result in courts compelling the State Board to
investigate lesser discharges, this will not stop future parties
from bringing litigation to test the limits of the trial court’s
uniqueness rule. We cannot endorse such a quixotic result.
To the extent the trial court is suggesting that an agency
with broad investigatory and enforcement discretion abuses that
discretion by neglecting to investigate a particularly egregious
violation, we have found no authority to that effect, nor has the
trial court or Waterkeeper cited any. Such neglect arguably could
be evidence that the agency more broadly is failing to take action
to meet its investigatory and enforcement duties, but those
were not the allegations here nor did the trial court so find.
We also reject any suggestion that the State Board must
explain to the court its decision not to direct its discretionary
investigatory and enforcement efforts at a particular potential
violation, when, as discussed, the law places no express limits on
that discretion. It is true that when an agency takes official
action involving its discretion, courts may review that action to
“ ‘ensure that an agency has adequately considered all relevant
factors, and has demonstrated a rational connection between
those factors, the choice made, and the purposes of the enabling
statute.’ [Citation.]” (Ridgecrest Charter School v. Sierra Sands
Unified School Dist. (2005) 130 Cal.App.4th 986, 1003.) Applying
this principle, the trial court concluded that, because the State
Board had yet to analyze whether the POTWs were wasting
water, “the State Board cannot demonstrate a rational connection
62
between its decision to do nothing to prevent waste and its
constitutional and statutory duty to do so. Nor can the State
Board demonstrate that i[t] has considered ‘all [or any] relevant
factors.’ ”
We do not dispute that if the State Board affirmatively
takes official action to prevent waste, such as by issuing
regulations or placing conditions on particular water users,
mandamus may lie to the extent the State Board abuses its
discretion by doing so. Should a party petition for a writ to
challenge those actions, a court likely has the power to assess
whether the State Board has considered all relevant factors and
taken action rationally connected to those factors.
We have found no authority, however, holding that when
an agency has broad discretion in directing its investigatory and
enforcement resources, its choice to direct those resources at
some potential violations and not others is subject to review on
mandamus. Nor would such a rule make sense in this case.
Again, the State Board does not have unlimited resources, and
cannot address every potential instance of purported
unreasonable use of water in the state. Were the State Board
required to justify itself to a court every time it chose not to
address a particular instance of alleged waste, the State Board
could forever be tied up in litigation over its decisions not to act
or prosecute.
In this case, in essence, the trial court ruled it would not
defer to the State Board’s choice not to evaluate the POTWs until
the State Board evaluated the POTWs and formally justified that
choice with findings. If a court could force the State Board to
investigate in order to explain why the State Board has chosen
not to investigate, the State Board’s discretion would be a nullity.
63
Nothing in article X, section 2 or the Water Code justifies such an
intrusion into the State Board’s discretion.
We further note that the trial court’s ruling presumes the
only acceptable reason the State Board could give for not taking
further action regarding the POTWs is that their discharges are
in fact reasonable, that is, that increased recycling is
impracticable. Yet even if the discharges are unreasonable, the
State Board nonetheless might choose to direct its enforcement
efforts elsewhere, for example because other instances of water
waste are more egregious, or are simpler to address and thus a
more efficient use of the State Board’s resources. The State
Board might also choose as a policy matter to incentivize water
recycling rather than mandate it. Indeed, at trial the State
Board offered evidence of its efforts to encourage recycling. Such
considerations are within the State Board’s discretion, and the
trial court’s ruling, focused solely on an evaluation of the
reasonableness of the POTWs’ discharges, inappropriately
converted a matter of discretion into a mandatory duty.
Perhaps recognizing these problems, the trial court ruled
not that the State Board had to justify its inaction in every
instance, but the State Board did have to do so in the face of the
large discharges at issue here. As we have explained, that is not
a workable standard nor one supported by the law.
Waterkeeper proposes a different tack, arguing that it
is not the size of the discharges that triggers the State Board’s
duty, but the fact that the Regional Board affirmatively approved
those discharges without regard to whether the discharges were
wasteful. Waterkeeper argues that, given the State Board’s duty
to prevent waste, it cannot stand by and do nothing while a
64
subordinate agency authorizes a potentially unreasonable
discharge of water.
In rejecting this argument, we return to the broad language
in article X, section 2 and Water Code sections 100 and 275,
which, again, do not direct the State Board to take action to
prevent waste in any particular circumstance, instead leaving it
to the Legislature and the State Board to determine when action
is appropriate. We cannot read the broad language in these
provisions to impose a mandatory duty on the State Board to
review wastewater discharge permits whenever those permits
authorize a large discharge of water into the environment.
Our holding here does not foreclose other avenues of relief
for Waterkeeper. As we have already discussed, as a general
matter, parties may directly take action in court or before the
State Board against those who use water unreasonably. Our
Supreme Court has recognized specifically that “causes of action
seeking to compel [a] defendant to reclaim waste waters” may be
brought before the State Board. (See Environmental Defense
Fund, supra, 26 Cal.3d at p. 187, fn. 1, 199.) How these actions
would apply to the POTWs at issue in the instant case is beyond
the scope of what we must decide here, but our holding does not
foreclose those actions.17
17 At oral argument, Waterkeeper appeared to suggest it
already had brought an action before the State Board when
Waterkeeper requested review of the Regional Board’s issuance
of wastewater discharge permits to the POTWs. Seeking review
of a Regional Board permitting decision, however, is not the same
as bringing an action directly against a POTW’s owner to compel
the POTW to recycle more water or otherwise reduce its
wastewater discharges.
65
What a party cannot do is to compel the State Board (or the
Regional Board) to conduct its own unreasonable use inquiry
merely based on the fact that the Regional Board has issued
wastewater discharge permits, or because the discharges at issue
are particularly large. The trial court erred in overruling the
demurrers in favor of the State Board.
B. Public Resources Code Section 21002 Does Not Apply
to the Wastewater Discharge Permits at Issue in This
Case
In its appeal, Waterkeeper challenges the trial court’s
ruling that the Regional Board was exempt from complying with
CEQA when issuing the NPDES-equivalent wastewater
discharge permits at issue in this case. Waterkeeper
acknowledges that Water Code section 13389 exempted the
Regional Board from chapter 3 of CEQA, governing the
preparation of environmental impact reports (EIRs), when the
Regional Board issued the POTWs’ most recent permits.18
Waterkeeper, however, argues the Regional Board nonetheless
had to comply with other provisions of CEQA. Specifically,
18 The Boards contend in their modification request that
the CEQA exemption under Water Code section 13389 applies
only to waste discharge permits that are the state equivalent of
federal NPDES permits, and not to waste discharge permits
issued pursuant to other provisions of the Water Code. Because
the waste discharge permits at issue in the instant case are
NPDES-equivalent permits, and the parties do not dispute the
permits are subject to the Water Code section 13389 exemption,
we need not, and do not decide whether the exemption applies to
other types of waste discharge permits not at issue in this case.
66
Waterkeeper contends that Public Resources Code19
section 21002, located in CEQA chapter 1, obliged the Regional
Board, in Waterkeeper’s words, “to make findings as to whether
the project has significant and unavoidable impacts, including
cumulative impacts resulting from multiple approvals of [waste
discharge requirements] for POTW[s], and if so, whether there
are feasible alternatives or mitigation measures that would
substantially lessen those impacts.”
Apart from section 21002, Waterkeeper does not argue that
the Regional Board failed to comply with other yet to be
identified sections in chapter 1 of CEQA or any other chapters,
and therefore does not explain how the trial court’s decision not
to compel the Regional Board to comply with those other sections
or chapters prejudiced Waterkeeper. (D.D. v. Pitcher (2022)
79 Cal.App.5th 1047, 1057 [appellant has burden to demonstrate
prejudicial error].) Accordingly, we need only determine if the
Regional Board must comply with section 21002 when issuing
NPDES-equivalent wastewater discharge permits. As to this
narrower issue, we conclude the trial court properly sustained the
demurrer to the CEQA causes of action.
The underlying premise of Waterkeeper’s argument is that
section 21002 imposes environmental review requirements
independent of CEQA’s EIR procedures from which NPDES
permits are exempt. We disagree with this premise. As we
explain below, section 21002 does not impose its own
environmental review requirements, but rather, states a policy
the Legislature intended the EIR process to effectuate. Thus,
19Further unspecified statutory citations are to the Public
Resources Code.
67
section 21002 only has force to the extent an entity otherwise is
obligated to prepare an EIR. Because the wastewater discharge
permits at issue in this case are exempt from the EIR
requirement, section 21002 is inapplicable, and the Regional
Board was not required to comply with that provision. We
therefore need not, and do not, reach the broader question
whether Water Code section 13389 provides a complete
exemption from CEQA.
1. Legal Background
a. CEQA’s EIR requirement
CEQA, enacted in 1970, “ ‘is a comprehensive scheme
designed to provide long-term protection to the environment. . . . ’
[Citation.]” (Pesticide Action Network North America v.
Department of Pesticide Regulation (2017) 16 Cal.App.5th 224,
238 (Pesticide Action Network).) “In general, CEQA ‘requires
various state and local governmental entities to submit
environmental impact reports before undertaking specified
activity. These reports compel state and local agencies to
consider the possible adverse consequences to the environment of
the proposed activity and to record such impact in writing.’
[Citation.]” (Pesticide Action Network, at p. 238.)
“The EIR is often referred to as the ‘ “ ‘heart’ ” ’ of CEQA.”
(County of Butte v. Department of Water Resources (2022)
13 Cal.5th 612, 627.) “Ideally, an EIR serves ‘to identify the
significant effects on the environment of a project, to identify
alternatives to the project, and to indicate the manner in which
those significant effects can be mitigated or avoided.’ [Citation.]
The document must include a description of the proposed project
and its environmental setting and discussions of (1) the possible
68
environmental effects of the project, (2) feasible measures to
mitigate any significant, adverse environmental effects of the
project, (3) the comparative environmental effects of a range of
reasonable alternatives to the proposed project, including a ‘no
project’ alternative, and (4) the cumulative impact of the project’s
various environmental effects [citations]. An EIR may also
include a discussion of the economic and social effects of the
project.” (Ibid.)
“Generally, chapter 3 of CEQA governs the preparation of
EIR’s by state agencies and chapter 4 governs the preparation of
EIR’s by local agencies.” (POET, LLC v. State Air Resources Bd.
(2013) 218 Cal.App.4th 681, 710, fn. 21 (POET); § 21100,
subd. (a) [“All lead agencies shall prepare . . . an environmental
impact report on any project which they propose to carry out or
approve that may have a significant effect on the environment.”].)
b. The CEQA exemption for wastewater discharge
permits
In 1972, the Legislature amended the Porter-Cologne Act
“ ‘to ensure consistency with the requirements for state programs
implementing the Federal Water Pollution Control Act.’
[Citation.]” (City of Burbank, supra, 35 Cal.4th at p. 620;
Stats. 1972, ch. 1256.) Among the amendments, the Legislature
enacted Water Code section 13389, providing, in relevant part,
“Neither the state board nor the regional boards shall be required
to comply with the provisions of Chapter 3 (commencing with
Section 21100) of Division 13 of the Public Resources Code prior
to the adoption of any waste discharge requirement . . . .”
Division 13, chapter 3 of the Public Resources Code is
CEQA chapter 3. Thus, the parties do not dispute that the State
and Regional Boards were exempt from preparing an EIR as part
69
of the NPDES-equivalent wastewater discharge permitting
process in this case. (See County of Los Angeles v. State Water
Resources Control Bd. (2006) 143 Cal.App.4th 985, 1006–1007.)
One court has observed that the intent of Water Code section
13389 was to “parallel” the federal Clean Water Act, which
exempts NPDES permits from the requirements of the National
Environmental Policy Act. (Pacific Water Conditioning Assn.,
Inc. v. City Council (1977) 73 Cal.App.3d 546, 556; see 33 U.S.C.
§ 1371(c).)
c. Section 21002 of CEQA
Section 21002, the CEQA chapter 1 provision with which
Waterkeeper alleged the Regional Board failed to comply, was
enacted in 1976. (Stats. 1976, ch. 1312, § 1.) The current version
of section 21002 provides, in relevant part, “The Legislature finds
and declares that it is the policy of the state that public agencies
should not approve projects as proposed if there are feasible
alternatives or feasible mitigation measures available which
would substantially lessen the significant environmental effects
of such projects, and that the procedures required by this division
are intended to assist public agencies in systematically
identifying both the significant effects of proposed projects and
the feasible alternatives or feasible mitigation measures which
will avoid or substantially lessen such significant effects.”
In support of its arguments under section 21002,
Waterkeeper also relies on section 21006, another provision in
CEQA chapter 1. Section 21006 provides, “The Legislature finds
and declares that this division is an integral part of any public
agency’s decisionmaking process, including, but not limited to,
the issuance of permits, licenses, certificates, or other
entitlements required for activities undertaken pursuant to
70
federal statutes containing specific waivers of sovereign
immunity.” Section 21006 was enacted in 1998. (Stats. 1998,
ch. 272, § 2.)
2. Analysis
Waterkeeper characterizes section 21002 as containing a
substantive mandate that requires the Regional Board, when
issuing wastewater discharge permits, to make findings under
CEQA regarding environmental impacts, and whether there are
feasible alternatives or mitigation measures to lessen those
impacts. Waterkeeper argues section 21006 bolsters its position
with the directive that CEQA “is an integral part of any [public]
agency’s decisionmaking process,” including, but not limited to,
the issuance of permits. (Italics omitted.)
We disagree with the breadth of Waterkeeper’s argument.
Section 21002 is not itself a directive to conduct environmental
review independent of the EIR process. Rather, it is a statement
of policy to be carried out through the EIR process. In other
words, section 21002 informs the EIR process, but does not
impose requirements separate from the EIR process.
The language of section 21002 supports this conclusion.
We repeat the first sentence of that provision: “The Legislature
finds and declares that it is the policy of the state that public
agencies should not approve projects as proposed if there are
feasible alternatives or feasible mitigation measures available
which would substantially lessen the significant environmental
effects of such projects, and that the procedures required by this
division are intended to assist public agencies in systematically
identifying both the significant effects of proposed projects and
the feasible alternatives or feasible mitigation measures which
71
will avoid or substantially lessen such significant effects.” (Italics
added.)
Thus, the Legislature states in section 21002 the general
policy that public agencies should not approve projects without
conducting environmental review, and then immediately declares
the “procedures required by this division [i.e., CEQA]” are the
intended means to carry out that policy. As discussed, the
“procedures required by this division” are the EIR process.
Our reading is confirmed by the very next section of CEQA
chapter 1. Section 21002.1, enacted at the same time as
section 21002, provides, in pertinent part, “In order to achieve
the objectives set forth in Section 21002, the Legislature hereby
finds and declares that the following policy shall apply to the use
of environmental impact reports prepared pursuant to this
division . . . .” The section then lists policy guidelines for EIRs,
including, “The purpose of an environmental impact report is to
identify the significant effects on the environment of a project, to
identify alternatives to the project, and to indicate the manner in
which those significant effects can be mitigated or avoided,” and
“[e]ach public agency shall mitigate or avoid the significant
effects on the environment of projects that it carries out or
approves whenever it is feasible to do so.” (§ 21002.1, subds. (a),
(b).)
Thus, section 21002.1 expressly declares how the
Legislature intended to implement “the objectives set forth in
Section 21002,” and that is through “the use of environmental
impact reports.”
We find further support in section 21081, a provision in
CEQA chapter 2.6, which our Supreme Court has stated
“effectuate[s]” “CEQA’s substantive mandate that public agencies
72
refrain from approving projects for which there are feasible
alternatives or mitigation measures.” (Mountain Lion
Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 134
(Mountain Lion Foundation).) Section 21081 provides, “Pursuant
to the policy stated in Sections 21002 and 21002.1, no public
agency shall approve or carry out a project for which an
environmental impact report has been certified which identifies
one or more significant effects on the environment that would
occur if the project is approved or carried out” unless the agency
makes certain findings regarding alternatives and mitigation
measures. (§ 21081, italics added; Mountain Lion Foundation, at
p. 134.) Again, section 21081 confirms the EIR is the means by
which an agency satisfies the policy articulated in section 21002.
Waterkeeper argues that although section 21002.1 “set[s]
out what an EIR should do if it is prepared,” neither that section
nor any other section of CEQA “require[s] an EIR to satisfy the
substantive mandate of section 21002.” In other words, nothing
in CEQA precludes a party from complying with section 21002 by
means other than an EIR.
Waterkeeper further contends the Regional Board can
comply with section 21002 “using the information and analysis
[the Regional Board] perform[s] in the normal course of permit
approval.” Waterkeeper argues the Regional Board already
gathers information for the permitting process “about the
contents of [the] POTW discharge, the biological resources and
water quality of receiving water bodies [citations], and the
potential impacts of discharge [citation].” “The permits distill
this information into benchmarks, requirements for best
management practices, pollution prevention requirements, and
monitoring and reporting requirements—and already arguably
73
accomplish some of the requirements of CEQA’s Chapter 1, in
particular, with regard to mitigation.” Making CEQA findings as
part of the wastewater discharge permitting process should not
cause undue delay, Waterkeeper claims, because Water Code
section 13389 frees the Regional Board from the procedural
requirements of the EIR process, specifically public comment
periods and document preparation.
Assuming, as Waterkeeper claims, the Regional Board
could comply with section 21002 using the information already
available to it through the wastewater discharge permitting
process, how is the Regional Board to know how to do so without
the statutory and regulatory guidance for EIRs? How are the
courts to evaluate if the Regional Board’s efforts are sufficient?
Waterkeeper proposes no framework, and the Legislature has
provided no alternative method beyond the EIR. Inevitably,
then, the courts would analogize to the EIR process and the case
law interpreting it, thus assessing the Regional Board’s actions
by the very standards from which the Legislature exempted those
actions.
Courts have held that when a statute is “vague[ ] about the
actions it assertedly mandates” and “fail[s] to specify any
procedure for enforcing that mandate or consequences that will
ensue if it is ignored,” this “suggest[s] it should be construed as
an expression of policy rather than a legal mandate.” (Gananian
v. Wagstaffe (2011) 199 Cal.App.4th 1532, 1541 [interpreting
Education Code section 15288 not to create a nondiscretionary
duty on the part of district attorneys to investigate alleged crimes
related to the expenditure of certain bond funds].) Section 21002
expressly states the “procedure[s] for enforcing [its] mandate”
(Gananian, at p. 1541), are “the procedures required by this
74
division” (§ 21002), that is, the EIR procedures. Stripped of those
procedures by Water Code section 13389, section 21002 becomes
a statement of policy rather than a mandate to the Regional
Board to apply CEQA to NPDES permits. Put another way, we
will not read section 21002 to impose requirements on the
Regional Board when the Legislature has specified no means to
carry out those requirements apart from an EIR, from which the
Regional Board expressly is exempt when granting the type of
permits at issue here.
This is not to say the Regional Board is not required to
engage in environmental review. That is of course the purpose of
the wastewater discharge permitting process, which evaluates
how much treated wastewater a treatment plant safely may
discharge into the environment, taking into consideration, inter
alia, “the beneficial uses to be protected, the water quality
objectives reasonably required for that purpose, other waste
discharges, [and] the need to prevent nuisance . . . .” (Wat. Code,
§ 13263, subd. (a).) The Legislature, however, has opted to
govern that process through the Water Code, not CEQA, at least
in the context of NPDES permits. Again, we will not interpret
CEQA to interpose its policy requirements into the Water Code’s
NPDES permitting process when the Legislature, by exempting
the Regional Board from an EIR requirement, has provided no
procedure for doing so.
Our conclusion is supported by County of Los Angeles,
supra, 143 Cal.App.4th 985, a case upon which the trial court
relied. County of Los Angeles confronted whether CEQA
chapter 2.6, “which contains generalized requirements for the
preparation of environmental impact reports for discretionary
projects,” required the Regional Board to prepare an EIR despite
75
Water Code section 13389’s exemption. (County of Los Angeles,
at pp. 1005–1006.)
Division Five of this district concluded it did not. The court
noted that chapter 2.6, as enacted in 1972, provided “this division
[i.e., CEQA] shall apply to discretionary projects,” and required
public agencies and the Office of Planning and Research to adopt
procedures and guidelines for preparing EIRs. (County of
Los Angeles, supra, 143 Cal.App.4th at pp. 1005–1006.) The
court reasoned these new provisions did not obviate the
exemption under Water Code section 13389 because the
requirement that state agencies actually prepare an EIR
remained in chapter 3, unchanged by the 1972 amendments
enacting chapter 2.6. (County of Los Angeles, at p. 1006.) The
appellate court found “no evidence the Legislature ever intended
to: impose a duty on regional boards to prepare environmental
impact reports; require regional boards to engage in any other
form of environmental review specified in the California
Environmental Quality Act; or to otherwise modify Water Code
section 13389.” (County of Los Angeles, at p. 1007.)
Under County of Los Angeles, the fact that sections of
CEQA outside of chapter 3 apply “this division [i.e., CEQA]” to
agency actions, and provide guidance on conducting
environmental review, does not indicate the Legislature intended
to require the Regional Board to conduct an environmental
review from which the Board otherwise is exempt under Water
Code section 13389. This is because, although environmental
review guidance might appear outside of chapter 3, the
environmental review process itself—i.e., the EIR process—
remains in chapter 3, from which NPDES permits are exempt by
virtue of section 13389. Here, as we have explained, the
76
Legislature has indicated in both sections 21002 and 21002.1 that
the policies contained in section 21002 are implemented through
“the procedures required by this division,” thus referring back to
the EIR procedures in chapter 3. As in County of Los Angeles, we
cannot read that language to impose requirements beyond those
in chapter 3 from which the Regional Board is exempt.20
We acknowledge County of Los Angeles differs from the
instant case in that the County of Los Angeles appellants sought
to impose a formal EIR requirement on the Regional Board
through CEQA chapter 2.6, whereas Waterkeeper argues
section 21002 imposes environmental review obligations on the
Regional Board irrespective of any EIR requirement. County of
Los Angeles nonetheless supports our conclusion that references
in CEQA to environmental review procedures and “this division,”
without more, refer to the EIR obligations from which the
Regional Board is exempt.
Waterkeeper argues County of Los Angeles is
distinguishable because its holding depended on the timing of
various legislative enactments, and in particular that the
Legislature enacted CEQA chapter 2.6 in the same year as Water
Code section 13389. In contrast, sections 21002 and 21006 were
enacted years after Water Code section 13389.
We are not clear what significance Waterkeeper attributes
to the timing of the various enactments. Regardless, we do not
agree the timing renders County of Los Angeles inapposite.
County of Los Angeles discussed the legislative timeline to
20 This is not to say the Legislature could not place
environmental review requirements outside of CEQA chapter 3,
just that it has not done so through the enactment of section
21002.
77
illustrate that CEQA’s EIR requirements existed in chapter 3
both before and after the enactment of chapter 2.6 and Water
Code section 13389. (County of Los Angeles, supra,
143 Cal.App.4th at p. 1006 [“The obligation imposed on a state
agency, board, and commission to prepare an environmental
impact report existed in chapter 3 before the adoption of Water
Code section 13389 and it remained there after the 1972
amendments to the California Environmental Quality Act.”].)
The court’s implicit conclusion was that had the Legislature
intended to impose the environmental review requirements of
chapter 2.6 on the NPDES permitting process, the Legislature
either would not have enacted the exemption in Water Code
section 13389, or would have moved the EIR requirement
somewhere other than chapter 3. Having done neither, the court
concluded the Legislature intended to exempt NPDES permits
from environmental review despite the enactment of chapter 2.6.
(County of Los Angeles, at pp. 1006–1007.) This reasoning
applies equally here, where CEQA’s environmental review
procedure remains in chapter 3 despite the Legislature adding
additional provisions relating to environmental review to chapter
1.21
21 The trial court relied on County of Los Angeles to
conclude Water Code section 13389 provides a complete
exemption from CEQA. We emphasize again we are not deciding
that broader issue.
78
3. Our holding does not conflict with case law
addressing certified regulatory programs
under CEQA
Waterkeeper cites Pesticide Action Network as
demonstrating that “a limited scope exemption from the
documentary requirements contained in Chapter 3 of CEQA
does not exempt an agency from ‘the substantive portions of
CEQA.’ ” As we explain, our holding does not conflict with
Pesticide Action Network, which concerned a very different
statutory regime.
Pesticide Action Network addressed the scope of the EIR
exemption for “certified regulatory programs” under section
21080.5, a provision of CEQA chapter 2.6. (Pesticide Action
Network, supra, 16 Cal.App.5th at p. 241.) These are state
regulatory programs that themselves require preparation of “a
plan or other written documentation containing environmental
information” before authorizing certain activities. (§ 21080.5,
subd. (a); see Pesticide Action Network, at p. 239.)
More specifically, if a state regulatory program and its
environmental documentation requirements meet the statutory
requirements of section 21080.5, and the program has been
certified by the Secretary of the Resources Agency, the program’s
environmental documents “may be submitted in lieu of the
environmental impact report required by this division.”
(§ 21080.5, subd. (a).) “The rationale for this rule is to avoid the
redundancy that would result if environmental issues were
addressed in both program-related documents and an EIR.”
(POET, supra, 218 Cal.App.4th at p. 709.) The certified
regulatory program’s documentation thus “serves as a functional
79
equivalent of an EIR.” (Mountain Lion Foundation, supra,
16 Cal.4th at p. 113.)
Accordingly, section 21080.5, subdivision (c) exempts
certified regulatory programs from CEQA chapters 3 and 4,
governing the EIR procedures for state and local agencies,
respectively. (Pesticide Action Network, supra, 16 Cal.App.5th at
p. 239.) The parties do not dispute that the Regional Board’s
NPDES permitting process is not a certified regulatory program.
(See County of Los Angeles, supra, 143 Cal.App.4th at p. 1007.)
Turning to Pesticide Action Network’s consideration of this
statutory framework, in that case the plaintiff challenged
approvals of amended labels on two pesticides by the Department
of Pesticide Regulation (the Department). (Pesticide Action
Network, supra, 16 Cal.App.5th at p. 232.) The plaintiff claimed
the Department had approved the amendments without
sufficient environmental review under CEQA, including “fail[ing]
to address any feasible alternative to registering the proposed
new uses” for the pesticides. (Id. at pp. 237, 244.) The plaintiff
argued that although the Department was exempt from the EIR
requirement, “the Department’s review must still comply with
CEQA’s policy goals and substantive standards.” (Id. at p. 240.)
The Department argued that because its pesticide approval
program had been certified by the Secretary of the Resources
Agency, the program was exempt from CEQA’s substantive
requirements, and therefore the Department had to comply only
with the pesticide approval program’s certified environmental
review procedures. (Pesticide Action Network, supra,
16 Cal.App.5th at p. 240.)
The Court of Appeal disagreed with the Department.
Citing the plain language of section 21080.5, subdivision (c) and
80
case law interpreting it, the court concluded the CEQA exemption
extended only to the chapters and provisions expressly identified
in the exemption, not to CEQA as a whole. (Pesticide Action
Network, supra, 16 Cal.App.5th at p. 242; see Sierra Club v. State
Bd. of Forestry (1994) 7 Cal.4th 1215, 1228 [certified regulatory
program “must conform . . . to those provisions of CEQA from
which it has not been specifically exempted by the Legislature”].)
Thus, “the Department’s program—and the environmental
review documents it prepares—remain subject to the broad policy
goals and substantive standards of CEQA not affected by
the limited exemption set forth in . . . section 21080.5,
subdivision (c).” (Pesticide Action Network, at p. 242.) The court
then explained how the defendant’s environmental findings fell
short, including by failing to analyze whether there were feasible
alternatives as required under section 21002. (Pesticide Action
Network, at pp. 244–245.)
Our holding does not conflict with Pesticide Action Network.
We have concluded that section 21002 has force only to the extent
an agency is required to follow environmental review procedures
under CEQA, namely the EIR procedures, because those are the
procedures the Legislature has provided to carry out the policy
articulated in section 21002. Certified regulatory programs are
exempt from the EIR procedures under CEQA chapters 3 and 4,
but only because those programs’ own environmental review
procedures satisfy the requirements of another section of CEQA,
section 21080.5, and are deemed the functional equivalent of EIR
procedures. Thus, the Legislature has not exempted certified
regulatory programs from CEQA review, but merely provided an
alternative method to conduct that review through the programs’
own CEQA-compliant environmental review procedures. It is
81
therefore logical to conclude, as did the court in Pesticide Action
Network, that the Legislature intended certified regulatory
programs’ EIR-equivalent procedures to accomplish the same
policy goals the Legislature intended EIRs to accomplish.
Indeed, section 21080.5 has a subdivision mirroring the
language of section 21002, mandating that certified regulatory
programs “[r]equire that an activity will not be approved or
adopted as proposed if there are feasible alternatives or feasible
mitigation measures available that would substantially lessen a
significant adverse effect that the activity may have on the
environment.” (§ 21080.5, subd. (d)(2)(A).) Clearly the
Legislature intended certified regulatory programs to comply
with the policy articulated in section 21002 regardless of the
exemption from formal EIR preparation.
The logic supporting Pesticide Action Network’s conclusion
that section 21002 creates obligations despite the exemption
under Public Resources Code section 21080.5, does not apply to
the exemption under Water Code section 13389. The EIR
exemption under section 21080.5 is conditioned on a regulatory
program having adequate EIR-equivalent procedures to fulfill
CEQA’s policy goals, including those articulated in section 21002.
The EIR exemption under Water Code section 13389, however, is
not conditional. The Regional Board is exempt from preparing an
EIR when issuing NPDES permits regardless of whether the
Regional Board’s procedures comply with section 21080.5 or any
other provision of CEQA.
Thus, in contrast to certified regulatory programs, the
Legislature has exempted the Regional Board from the EIR
requirement without mandating an alternative means of
accomplishing the policy goals of section 21002. In the language
82
of section 21002, there are no “procedures required by this
division” applicable to the NPDES permitting process. Because
Waterkeeper identifies no other provision of CEQA with which
the Regional Board failed to comply, the trial court did not err in
sustaining the demurrer to the CEQA causes of action.
C. The Attorney Fees Award Must Be Reversed
The trial court awarded Waterkeeper attorney fees under
Code of Civil Procedure section 1021.5, which allows an award of
fees “to a successful party . . . in any action which has resulted in
the enforcement of an important right affecting the public
interest.” The parties agree that a full reversal of the judgments
against the State Board requires we also reverse the attorney
fees award, and we do so.22
22 The only dispute in the appeal from the fees award
concerns the proper disposition had we affirmed the judgments
against the State Board in part. We express no opinion on that
issue.
83
DISPOSITION
The judgments of dismissal in favor of the Regional Water
Quality Control Board, Los Angeles Region are affirmed. The
judgments and writs of mandate against the State Water
Resources Control Board are reversed. The order granting
Los Angeles Waterkeeper attorney fees is reversed.
The State Water Resources Control Board, Regional Water
Quality Control Board, Los Angeles Region, and City of Burbank
are awarded their costs on appeal.
CERTIFIED FOR PUBLICATION.
BENDIX, Acting P. J.
We concur:
CHANEY, J.
WEINGART J.
84