In the Asociacion de Gente Unida Por El Agua v. Central Valley Regional Water Quality Control Board, 210 Cal. App. 4th 1255 (2012) the third District Court of Appeals found that the Central Valley Regional Board had violated and the State’s antidegradation policy in issuing the Dairy General Order issued by the Central Valley Regional Board, (Order No. R5-2007-0035). The appeals court found in particular that the failure to properly monitor dairies’ groundwater and the probability that there would be additional discharges was where the order was violated. The appeals court remanded the case to the Superior Court to with directions to grant the petition and to require the Regional Board to comply with the resolution number 68 -16 concerning antidegradation.
On March 20 the Judge Frawley of the Superior court issued what was styled as a Judgment after Remittitur. In that judgment the court granted the plaintiff’s original petition that had been overturned by the prior Superior Court action.
The court also issued a Writ of Mandate commanding the Regional Board to set aside the waste discharge requirements of the General Order and reissue them only after compliance with anti-degradation policy, as interpreted by the Court of Appeal in its decision. This included without limitation; adequate findings that any allowed discharges to high-quality water will be consistent with maximum benefit to the people and will not unreasonably affect present anticipated beneficial uses , and will not result in water quality less than that prescribed in the applicable water quality objectives . Additionally that waste discharge activities will be required to use the best practical treatment or control of the discharge necessary to assure that a pollution or nuisance will not occur and the highest water quality consistent with the maximum benefit to the people of the state. The writ also required a return within hundred and 80 days for the Board to inform the court what it intended to do.
The question then is how the board will comply with this order; it is assumed that there will be additional scrutiny of monitoring requirements as well as additional scrutiny of situations where lined ponds will be required; particularly in light of potential beneficial uses. It will also require an examination of the current proposal for representative monitoring that may be impacted by this order. The Superior Court Order can be found here.