Although water reuse is a high priority for California, the considerations a city or other water supplier must contend with in navigating the development of new water supplies are both manifold and highly complex. A recent Brownstein win at California’s Second District Court of Appeal acknowledges the irrefutable importance of supplies like recycled water without sacrificing local autonomy or overburdening state agencies. The Second District Court of Appeal decision establishes that the State Water Resources Control Board (SWRCB) has broad discretion to investigate, or not, allegations of waste or unreasonable use, likely stemming an influx of lawsuits seeking to force the SWRCB to investigate every user and use of water in California.
Brownstein prevailed on all three issues on appeal in a major case interpreting California’s reasonable use doctrine (Article X, section 2 of the California Constitution), which governs all uses of water resources in California. On Feb. 27, 2023, the state’s Second District Court of Appeal sided with our client, the City of Burbank, and reversed a trial court decision ordering the SWRCB to investigate whether treated wastewater discharges from four Los Angeles area wastewater treatment facilities constituted a waste and unreasonable use and instead should be recycled. (Los Angeles Waterkeeper v. State Water Resources Control Board (Cal. Ct. App. February 27, 2023, No. B309151) 2023 WL 2237785.)
Recycled water is integral to achieving resilience in California’s water supply portfolio. The court’s decision recognizes the importance of recycled water while preserving the decision-making ability of cities and other public water suppliers to balance relevant financial, engineering, social and environmental considerations in developing new sources of supply. The published decision in this case of first impression provides key guidance not just to wastewater treatment facilities, but to all water users. Absent the legislature’s direction, the SWRCB has broad discretion to investigate, or not, allegations of wasteful water use.
Four cases (consolidated for trial and appeal) arose out of petitions for writ of mandate filed against the SWRCB and the Los Angeles Regional Water Quality Control Board alleging that both violated their respective duties to prevent the waste and unreasonable use of water when permitting four wastewater treatment facilities (Burbank Water Reclamation Plant, Los Angeles-Glendale Water Reclamation Plant, Tillman Water Reclamation Plant, and Hyperion Water Reclamation Plant) to discharge treated wastewater without evaluating whether the discharges amounted to the waste and unreasonable use of water. The SWRCB and LA’s regional boards demurred. The Los Angeles Superior Court sustained the demurrer as to the regional board, but overruled the demurrer as to the SWRCB. Following a bench trial, the Superior Court entered judgment in favor of Waterkeeper, and issued writs of mandate ordering the SWRCB to investigate whether the treated wastewater discharges from all four wastewater treatment facilities should be recycled. The SWRCB and Burbank appealed, and Waterkeeper cross-appealed.
Below we recap what this decision means for all water users in California:
1. Absent the legislature’s direction, the SWRCB has broad discretion to investigate, or not, allegations of wasteful water use
First, the Second District Court of Appeal reversed the trial court on the primary issue on appeal. Instead the court ruled that even if, for the sake of argument, the SWRCB has a general duty to prevent waste and unreasonable use (the court declined to address whether it does), petitioner Waterkeeper had failed to allege sufficient facts to demonstrate that the SWRCB abused its discretion when it declined to investigate whether the cities of Burbank, Glendale and Los Angeles were wasting water by discharging treated wastewater to the Los Angeles River and/or the ocean instead of recycling the supply.
The Second District Court of Appeal held that the SWRCB’s discretion with respect to implementation of the reasonable use doctrine is so broad that it can properly choose to ignore an entire class of users or uses, including the specific users and uses in this case.
“[T]he fact that the State Board has taken no action to prevent a particular waste is insufficient to establish 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 [cities’] discharges completely, choosing instead to focus on, for 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.”
In reaching its conclusion, the court placed significant weight on the legislature’s acts—i.e., those instances in which the legislature has directed the SWRCB to evaluate whether a particular use is reasonable, and when it has not done so. The legislature has promulgated numerous declarations and enactments encouraging, but not requiring, the use of recycled water. In effect, the court rejected petitioner’s attempt to force the use of recycled water when the legislature has consistently declined to do so.
A city’s decision to recycle water is informed by a number of highly complex, multifaceted and technical issues that occur long before it elects to discharge some or all of its wastewater and seeks a permit for doing so, including but not limited to: the physical and technical capacity to treat wastewater for reuse, compliance with health and safety criteria, demand for recycled water by the city’s customers, existence of sufficient infrastructure to allow the city to deliver recycled water to its customers, sufficient funding (whether through water rates, grants or government loans) to permit all of the necessary capital and operational components of a recycled water project, and the potential environmental effects of the associated decrease in discharges to a watercourse. The trial court decision, had it been allowed to stand, would have resulted in a flood of litigation to force the SWRCB to second-guess these inherently local and site-specific decisions.
2. There is no application of the reasonable use doctrine when permitting waste discharges
Second, the Second District Court of Appeal affirmed the trial court’s conclusion that regional water boards do not have a duty to enforce the reasonable use doctrine when issuing waste discharge permits.
3. The regional boards are exempt from CEQA when issuing waste discharge permits
Finally, the Second District Court of Appeal also affirmed the trial court’s conclusion that Public Resources Code section 21002 does not mandate environmental review under CEQA when wastewater discharge permits are issued under the Clean Water Act.
This document is intended to provide you with general information regarding the California Second District Court of Appeal's opinion in Los Angeles Waterkeeper v. State Water Resources Control Board. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.