Court Affirms Need To Protect Water Quality Even In Drought

During the last three years of California’s drought, the state and federal agencies charged with protecting fishable, swimmable, and drinkable water quality for all Californians have utterly failed to do their job. The results have been disastrous: more toxic algae blooms are infecting California’s waterways than ever before; at least 35 plants and animals native to the San Francisco Bay-Delta ecosystem are perched on the edge of extinction; and thousands of salmon fishermen up and down the coast are uncertain whether they’ll be able to pursue their livelihood for years to come.

Today, in a victory for the public’s interest in clean drinking water and healthy rivers, a federal district court judge rejected the lawlessness of these agencies, and put the U.S. Environmental Protection Agency (EPA) and California’s State Water Resources Control Board (State Board) on notice that they must comply with the Clean Water Act. The court ruled that EPA failed to establish that the multiple waivers of water quality standards issued by the State Board during the drought—waivers which have devastated water quality and the ecosystem in the Bay-Delta—do not “qualify as ‘revisions’ to the water quality standards in the EPA-approved 1995 Bay-Delta Plan” that trigger EPA’s mandatory review.  EPA refused to review these changes to ensure that the waivers protect the important values of the Clean Water Act—fishable, swimmable, and drinkable water.    

The decision was made in response to a lawsuit filed by NRDC, Defenders of Wildlife, and The Bay Institute. We filed this action after the State Board made 14 separate decisions over the last three years that allowed massive state and federal water diversion projects in the Bay-Delta to violate more than 24 water quality standards. Those decisions redirected more than 1.3 million acre-feet of water away from protecting water quality and the environment, and allowed it instead to be used primarily for corporate agriculture. (1.3 million acre-feet is enough water to supply the City of Los Angeles for more than two years.) 

Here are the State Board’s own graphs on where the water should have gone (“without TUCP”) and where it actually went (“with TUCP”) in 2014 and 2015:

The 2014 and 2015 “temporary urgency change petitions” took a total of 1.083 million acre-feet away from meeting water quality and dedicated it to increasing Delta exports. In 2016, the State Board continued to weaken a number of standards that took another 258 thousand acre-feet of water away from the environment (aka “rivers”), while at the same time lifting mandatory water conservation requirements across the state.

The Clean Water Act is designed to prevent just this type of water quality deterioration by requiring the EPA to review any changes to water quality standards and to ensure that those changes protect beneficial uses like drinking water and salmon habitat before they are implemented. Both EPA and the State Board failed to take that mandatory step before reducing water quality protections in California over the last three years, but we intend to ensure that they do so in the future.