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This case was last updated from Los Angeles County Superior Courts on 10/09/2019 at 12:09:43 (UTC).

LOS ANGELES WATERKEEPER VS CALIFORNIA STATE WATER RESOURCE

Case Summary

On 09/26/2017 LOS ANGELES WATERKEEPER filed an Other - Writ Of Mandamus lawsuit against CALIFORNIA STATE WATER RESOURCE. This case was filed in Los Angeles County Superior Courts, Norwalk Courthouse located in Los Angeles, California. The Judges overseeing this case are RICHARD FRUIN, JAMES C. CHALFANT, TORRIBIO, JOHN A., YVETTE M. PALAZUELOS and RUPERT A. BYRDSONG. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1009

  • Filing Date:

    09/26/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Writ Of Mandamus

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Norwalk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RICHARD FRUIN

JAMES C. CHALFANT

TORRIBIO, JOHN A.

YVETTE M. PALAZUELOS

RUPERT A. BYRDSONG

 

Party Details

Plaintiff and Petitioner

LOS ANGELES WATERKEEPER

Defendants and Respondents

CALIFORNIA STATE WATER RESOURCES

LOS ANGELES REGIONAL WATER QUALITY

CALIFORNIA STATE WATER RESOURCES CONTROL

Interested Parties

CITY OF BURBANK DEPT OF PUBLC WORKS

CITY OF LOS ANGELES DEPT OF PUBLIC WORKS

CITY OF BURBANK

CITY OF LOS ANGELES

CITY OF GLENDALE

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LOS ANGELES WATERKEEPER

DANIEL COOPER

CAROLINE KOCH

MELISSA KELLY

CHATTEN-BROWN & CARSTENS

ARTHUR PUGSLEY

COOPER DANIEL GORDON

PUGSLEY ARTHUR SIDNEY

Defendant and Respondent Attorneys

OFFICE OF ATTY GENERAL

KATZ ERIC MEYER

Interested Party Attorneys

HASTINGS STEPHANIE OSLER

HOPENSTAND ADENA MICHELLE

THORME MELISSA ANNE

 

Court Documents

Other - - OTHER - DECISION ON DEMURRER: (1) OVERRULED FOR STATE BOARD; AND (2) SUSTAINED FOR REGIONAL BOARD

9/6/2019: Other - - OTHER - DECISION ON DEMURRER: (1) OVERRULED FOR STATE BOARD; AND (2) SUSTAINED FOR REGIONAL BOARD

Minute Order -

5/16/2018: Minute Order -

STIPULATION AND ORDER TO CONTINUE TRIAL SETTING CONFERENCE AND RELATED ORDERS

8/17/2018: STIPULATION AND ORDER TO CONTINUE TRIAL SETTING CONFERENCE AND RELATED ORDERS

AMENDED NOTICE OF CHANGE OF ADDRESS FOR COUNSEL FOR REAL PARTIES IN INTEREST CITY OF BURBANK, CITY OF BURBANK DEPARTMENT OF PUBLIC WORKS, AND CITY OF GLENDALE

9/25/2018: AMENDED NOTICE OF CHANGE OF ADDRESS FOR COUNSEL FOR REAL PARTIES IN INTEREST CITY OF BURBANK, CITY OF BURBANK DEPARTMENT OF PUBLIC WORKS, AND CITY OF GLENDALE

Stipulation and Order - Stipulation and Order to modify briefing schedule on demurrer

10/12/2018: Stipulation and Order - Stipulation and Order to modify briefing schedule on demurrer

Minute Order - (Court Order re: order on Notice of Related Cases)

10/12/2018: Minute Order - (Court Order re: order on Notice of Related Cases)

Certificate of Mailing for - Minute Order (Court Order re: order on Notice of Related Cases) of 10/12/2018

10/12/2018: Certificate of Mailing for - Minute Order (Court Order re: order on Notice of Related Cases) of 10/12/2018

Notice of Joinder - Notice of Joinder (Name Extension) Notice of Demurrer and Demurrer to Petitioner's Verified Petition for Writ of Mandate

10/17/2018: Notice of Joinder - Notice of Joinder (Name Extension) Notice of Demurrer and Demurrer to Petitioner's Verified Petition for Writ of Mandate

Proof of Service by Mail - Proof of Service

12/5/2018: Proof of Service by Mail - Proof of Service

Notice of Case Reassignment and Order for Plaintiff to Give Notice

2/7/2019: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Notice of Status Conference and Order

2/11/2019: Notice of Status Conference and Order

Stipulation and Order - STIPULATION AND ORDER STIPULATION AND [PROPOSED] ORDER TO CONTINUE STATUS CONFERENCE

3/22/2019: Stipulation and Order - STIPULATION AND ORDER STIPULATION AND [PROPOSED] ORDER TO CONTINUE STATUS CONFERENCE

Minute Order -

1/25/2018: Minute Order -

Notice of Related Cases -

12/22/2017: Notice of Related Cases -

NOTICE OF STATUS CONFERENCE AND ORDER

12/18/2017: NOTICE OF STATUS CONFERENCE AND ORDER

Minute Order -

12/1/2017: Minute Order -

Minute Order -

10/2/2017: Minute Order -

RESPONSE IN OPPOSITION TO NOTICE OF RELATED CASE

10/6/2017: RESPONSE IN OPPOSITION TO NOTICE OF RELATED CASE

44 More Documents Available

 

Docket Entries

  • 10/10/2019
  • Hearing10/10/2019 at 09:30 AM in Department 85 at 111 North Hill Street, Los Angeles, CA 90012; Trial Setting Conference

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  • 09/25/2019
  • DocketStipulation - No Order (re Amended Writ); Filed by CITY OF BURBANK (Real Party in Interest)

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  • 09/06/2019
  • Docketat 09:00 AM in Department 85, James C. Chalfant, Presiding; Ruling on Submitted Matter

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  • 09/06/2019
  • DocketMinute Order ( (Ruling on Submitted Matter Demurrer of Respondents Regional ...)); Filed by Clerk

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  • 09/06/2019
  • DocketOther - (Decision on demurrer: (1) overruled for State Board; and (2) sustained for Regional Board); Filed by Clerk

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  • 09/03/2019
  • Docketat 1:30 PM in Department 85, James C. Chalfant, Presiding; Hearing on Demurrer - without Motion to Strike - Held - Taken under Submission

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  • 09/03/2019
  • Docketat 1:30 PM in Department 85, James C. Chalfant, Presiding; Trial Setting Conference - Held - Continued

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  • 09/03/2019
  • DocketMinute Order ( (Hearing on Demurrer; Trial Setting Conference)); Filed by Clerk

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  • 08/08/2019
  • Docketat 09:30 AM in Department 85, James C. Chalfant, Presiding; Hearing on Demurrer - without Motion to Strike - Held - Continued

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  • 08/08/2019
  • Docketat 09:30 AM in Department 85, James C. Chalfant, Presiding; Trial Setting Conference - Held - Continued

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115 More Docket Entries
  • 10/04/2017
  • DocketMinute Order

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  • 10/02/2017
  • Docketat 08:30 AM in Department 85; Court Order - Held

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  • 10/02/2017
  • DocketMinute order entered: 2017-10-02 00:00:00; Filed by Clerk

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  • 10/02/2017
  • DocketMinute Order

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  • 09/26/2017
  • DocketPetition; Filed by null

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  • 09/26/2017
  • DocketVERIFIED PETITION FOR WRIT OF MANDATE

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  • 09/26/2017
  • DocketPetition-Writ-Mandate; Filed by Attorney for Petitioner

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  • 09/26/2017
  • DocketSummons; Filed by Petitioner

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  • 09/26/2017
  • DocketPetition for Writ of Mandate; Filed by Petitioner

    Read MoreRead Less
  • 09/26/2017
  • DocketSummons Filed; Filed by Attorney for Petitioner

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Tentative Rulings

Case Number: BS171009    Hearing Date: February 11, 2021    Dept: 85

Los Angeles Waterkeeper v. State Water Resources Control Board, BS171009

Tentative decision on motion for attorneys’ fees: granted

Petitioner Los Angeles Waterkeeper (“Waterkeeper”) moves for an award of attorneys’ fees against Respondent State Water Resources Control Board (“State Board”).

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

A. Statement of the Case

1. Petition BS171009

Petitioner Waterkeeper commenced this proceeding on September 26, 2017, alleging causes of action under the California Constitution Article X, section 2 (“Article X, section 2”), the California Environmental Quality Act (“CEQA”), and the Water Code. The verified Petition alleges in pertinent part as follows.

Respondent Regional Water Quality Control Board, Los Angeles Region (“Regional Board”) erred in approving the Waste Discharge Requirements (“WDR” or “permit”) and a National Pollutant Discharge Elimination System (“NPDES”) permit for Burbank’s Water Reclamation Plant (“Burbank plant”). Article X, section 2 places a non-discretionary affirmative duty on the Regional Board to determine whether a water use is reasonable and beneficial and to prevent waste and unreasonable use of all water resources in California. Water Code section 100 (“section 100”) also requires the Regional Board to determine whether a water use is reasonable and beneficial and to prevent waste. In approving the WDR and NPDES permit for the Burbank plant, the Regional Board failed to act in a manner required by law and failed to perform a mandatory duty by failing to analyze whether reauthorizing the discharge constitutes a waste and unreasonable use of a water resource.

The Regional Board also violated CEQA by failing to conduct the analysis required, include findings regarding feasible alternatives that could lessen environmental impacts, include findings regarding cumulative impacts of multiple WDR approvals, and then base its findings on substantial evidence.

The State Board failed to act in a manner required by law and failed to perform its mandatory duties pursuant to Article X, section 2 and Water Code sections 100 and 275. Section 100 places on the State Board a non-discretionary affirmative duty to determine whether a water use is reasonable and beneficial and to prevent the waste and unreasonable use of all water resources in California. Water Code section 275 (“section 275”) directs the State Board to take all appropriate proceedings or actions before executive, legislative, or judicial agencies to prevent waste, unreasonable use, or unreasonable methods of use.

The State Board failed to perform its duty by failing to determine whether the discharge from the Burbank plant is a reasonable and beneficial use of a water resource and/or whether the rate of discharge constitutes a reasonable and beneficial use. The State Board failed to take all appropriate proceedings or actions as required by law to prevent the waste, unreasonable use, and unreasonable method of use of water.

2. Petition BS171010

Petitioner Waterkeeper commenced this proceeding on September 26, 2017, alleging causes of action under Article X, section 2, CEQA, and the Water Code. The verified Petition alleges in pertinent part as follows.

The Regional Board erred in approving the WDR and NPDES permit for the Los Angeles and Glendale Water Reclamation Plant (“Glendale plant”).[2] Article X, section 2 places a non-discretionary affirmative duty on the Regional Board to determine whether a water use is reasonable and beneficial and to prevent waste and unreasonable use of all water resources in California. Section 100 also requires the Regional Board to determine whether a water use is reasonable and beneficial and to prevent waste. In approving the WDR and NPDES permit for the Glendale plant, the Regional Board failed to act in a manner required by law and failed to perform a mandatory duty by failing to analyze whether authorizing the discharge constitutes a waste and unreasonable use of a water resource.

The Regional Board also violated CEQA by failing to conduct the analysis required, include findings regarding feasible alternatives that could lessen environmental impacts, include findings regarding cumulative impacts of multiple WDR approvals, and base its findings on substantial evidence.

The State Board failed to act in a manner required by law and failed to perform its mandatory duties pursuant to Article X, section 2 and sections 100 and 275. Section 100 places a non-discretionary affirmative duty on the State Board to determine whether a water use is reasonable and beneficial and to prevent the waste and unreasonable use of all water resources in California. Section 275 directs the State Board to take all appropriate proceedings or actions before executive, legislative, or judicial agencies to prevent waste, unreasonable use, or unreasonable method of use.

The State Board failed to perform its duty by failing to determine whether the discharge from the Glendale plant is a reasonable and beneficial use of a water resource and/or whether the rate of discharge constitutes a reasonable and beneficial use. The State Board failed to take all appropriate proceedings or actions as required by law to prevent the waste, unreasonable use, and unreasonable method of use of water.

3. Petition BS171011

Petitioner Waterkeeper commenced this proceeding on September 26, 2017, alleging causes of action under Article X, CEQA, and the Water Code. The verified Petition alleges in pertinent part as follows.

The Regional Board erred in approving the WDR and NPDES permit for Los Angeles’ Donald C. Tillman Water Reclamation Plant (“Tillman plant”). Article X, section 2 places a non-discretionary affirmative duty on the Regional Board to determine whether a water use is reasonable and beneficial and to prevent waste and unreasonable use of all water resources in California. Section 100 also requires the Regional Board to determine whether a water use is reasonable and beneficial and to prevent waste. In approving the WDR and NPDES permit for the Tillman plant, the Regional Board failed to act in a manner required by law and failed to perform a mandatory duty by failing to analyze whether reauthorizing the discharge constitutes a waste and unreasonable use of a water resource.

The Regional Board also violated CEQA by failing to conduct the analysis required, include findings regarding feasible alternatives that could lessen environmental impacts, include findings regarding cumulative impacts of multiple WDR approvals, and base its findings on substantial evidence.

The State Board failed to act in a manner required by law and failed to perform its mandatory duties pursuant to Article X, section 2 and sections 100 and 275. Section 100 places a non-discretionary affirmative duty on the State Board to determine whether a water use is reasonable and beneficial and to prevent the waste and unreasonable use of all water resources in California. Section 275 directs the State Board to take all appropriate proceedings or actions before executive, legislative, or judicial agencies to prevent waste, unreasonable use, or unreasonable method of use.

The State Board failed to perform its duty by failing to determine whether the discharge from the Tillman plant is a reasonable and beneficial use of a water resource and/or whether the rate of discharge constitutes a reasonable and beneficial use. The State Board failed to take all appropriate proceedings or actions as required by law to prevent the waste, unreasonable use, and unreasonable method of use of water.

4. Petition BS171012

Petitioner Waterkeeper commenced this proceeding on September 26, 2017, alleging causes of action under Article X, CEQA, and the Water Code. The operative pleading is the First Amended Petition (“FAP”), filed on November 2, 2018. The FAP alleges in pertinent part as follows.

The Regional Board erred in approving the WDR and NPDES permit for Los Angeles’ Hyperion Water Reclamation Plant (“Hyperion plant”). Article X, section 2 places a non-discretionary affirmative duty on the Regional Board to determine whether a water use is reasonable and beneficial and to prevent waste and unreasonable use of all water resources in California. Section 100 also requires the Regional Board to determine whether a water use is reasonable and beneficial and to prevent waste. In approving the WDR and NPDES permit for the Hyperion plant, the Regional Board failed to act in a manner required by law and failed to perform a mandatory duty by failing to analyze whether reauthorizing the discharge constitutes a waste and unreasonable use of a water resource.

The State Board failed to act in a manner required by law and failed to perform its mandatory duties pursuant to Article X, section 2 and sections 100 and 275. Section 100 places a non-discretionary affirmative duty on the State Board to determine whether a water use is reasonable and beneficial and to prevent the waste and unreasonable use of all water resources in California. Section 275 directs the State Board to take all appropriate proceedings or actions before executive, legislative, or judicial agencies to prevent waste, unreasonable use, or unreasonable method of use.

The State Board failed to perform its duty by failing to determine whether the discharge from the Hyperion plant is a reasonable and beneficial use of a water resource and/or whether the rate of discharge constitutes a reasonable and beneficial use. The State Board failed to take all appropriate proceedings or actions as required by law to prevent the waste, unreasonable use, and unreasonable method of use of water.

5. Course of Proceedings

On October 12, 2018, Judge Palazuelos related Petitions BS171009, BS171010, BS171011, and BS171012 and consolidated them for briefing and trial. BS 171009 was designated as the lead case.

On September 6, 2019, the court overruled Respondents’ demurrers to the four consolidated Petitions as to the State Board and sustained them as to the Regional Board without leave to amend. The Regional Board was dismissed from the Petitions on October 10, 2019.

On August 4, 2020, the court granted in part Waterkeeper’s Petitions, directing the State Board to apply its expertise to evaluate the waste/unreasonable use of the four POTWs’ discharge.

B. Applicable Law

CCP section 1021.5 (“section 1021.5”) codifies the “private attorney general” exception to the general rule that each side bears its own fees unless the parties contracted otherwise. See CCP §1021. Section 1021.5 permits a trial court to award fees to a successful party in any action where it has been established that (1) plaintiff’s action has resulted in the enforcement of an important right affecting the public interest, (2) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, and (3) the necessity and financial burden of private enforcement are such as to make the award appropriate. Conservatorship of Whitley, (2010) 50 Cal.4th 1206, 1214. The burden is on the party requesting section 1021.5 fees to demonstrate all elements of the statute, including that the litigation costs, transcend his or her personal interest.  Millview County Water Dist. v. State Water Resources Control Bd., (“Millview”) (2016) 4 Cal.App.5th 759, 769. The issue is committed to the trial court’s discretion. Ibid.

Courts take a “broad, pragmatic view of what constitutes a ‘successful party’” in order to effectuate the policy underlying section 1021.5. Graham v. DaimlerChrysler Corp., (“Graham”) (2004) 34 Cal.4th 553, 565. The party seeking attorney fees need not prevail on all of its alleged claims in order to qualify for an award. Harbor v. Deukmejian, (“Harbor”) (1987) 43 Cal.3d 1078, 1103; Daniels v. McKinney, (“Daniels”) (1983) 146 Cal.App.3d 42, 55. The party is considered “successful” under section 1021.5 if the litigation “contributed substantially to remedying the conditions at which it was directed.” Planned Parenthood v. Aakhus, (“Aakhus”) (1993) 14 Cal.App.4th 162, 174. In other words, the “successful” party under section 1021.5 is the party that succeeds on “any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Maria P. v. Riles, (“Maria P.”) (1987) 43 Cal.3d 1281, 1292; see Tipton-Whittingham v. City of Los Angeles, (2004) 34 Cal.4th 604, 610. Prevailing counsel who qualify for an award under section 1021.5 are entitled to compensation for all hours reasonably spent. Serrano v. Unruh, (1982) 32 Cal.3d 621, 632–33.

Unlike the separate substantial benefit doctrine, “the ‘significant benefit’ that will justify an attorney fee award need not represent a ‘tangible’ asset or a ‘concrete’ gain but, in some cases, may be recognized simply from the effectuation of a fundamental constitutional or statutory policy.” Woodland Hills Residents Assn., Inc. v. City Council, (“Woodland Hills”) (1979) 23 Cal.3d 917, 939. “[T]he benefit may be conceptual or doctrinal and need not be actual or concrete; further, the effectuation of a statutory or constitutional purpose may be sufficient.” Braude v. Automobile Club of Southern Cal., (1986) 178 Cal.App.3d 994, 1011. Moreover, the extent of the public benefit need not be great to justify an attorney fee award. See, e.g., Protect Our Water v. County of Merced, (2005) 130 Cal.App.4th 488, 496 (significant public benefit where litigation prompted agency to improve methods of creating and managing its CEQA records). The trial court determines “the significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.” Woodland Hills, supra, 23 Cal.3d at 939-40.

The party seeking attorney’s fees must show that the necessity for pursuing the lawsuit placed a burden on the plaintiff “out of proportion to his individual stake in the matter.” Woodland Hills, supra, 23 Cal. 3d at 941. Although cases refer to this requirement as the “financial burden” criterion, nothing in the language of CCP section 1021.5 limits the consideration of the necessity and financial burden clause to solely financial interests. Hammond v. Agran, (2002) 99 Cal.App.4th 115, 125. “The idea is that the litigation for which fees are claimed must transcend one's interests, whether pecuniary or not.” Id. at 127. The question is whether advancement of the public interest was merely coincidental to the attainment of the party’s personal goals. Bowman v. City of Berkeley, (2005) 131 Cal.App.4th 173, 181. The party seeking attorney fees bears the burden of establishing that its litigation costs transcend its personal interests. Save Open Space Santa Monica Mountains v. Superior Court, (2000) 84 Cal.App.4th 235, 247. The trial court's application of the financial burden criterion involves a “realistic and practical comparison of the litigant's personal interest with the cost of suit.” Families Unafraid to Uphold Rural El Dorado County v. Bd. of Supervisors, (2000) 79 Cal.App.4th 505, 515.

C. Statement of Facts

1. Petitioner’s Evidence

a. Waterkeeper’s Counsel

Attorneys Daniel Cooper (“Cooper”), Caroline Koch (“Koch”), Arthur Pugsley (“Pugsley”), Michelle Black (“Black”), Melissa Kelly (“Kelly”), and Kelly Clark (“Clark”), Doug Carstens (“Carstens”), and Amy Minteer (“Minteer”) and paralegal Jessica Hollinger (“Hollinger”) billed hours on behalf of Waterkeeper in the instant matter. Cooper Decl., Exs. A, C; Pugsley Decl., ¶29, Ex. A.

Cooper represented Waterkeeper at every phase of case development and litigation since August 2017. Cooper Decl., ¶¶ 33-34. Cooper took over as lead counsel after Koch ended her representation as lead counsel and joined a non-profit. Cooper Decl., ¶34. Cooper spent 245.5 hours in his representation of Waterkeeper, which was necessary due to the novel and complex claims and the State Board’s vigorous litigation, including two demurrers, discovery, and trial. Cooper Decl., ¶36, Ex. A. Cooper’s hourly rate for the matter was $875 per hour. Cooper Decl., ¶18. Cooper has spent an additional 31.3 hours on the instant fee motion, billing $27,387.50 for the motion. Cooper Decl., ¶38, Ex. B.

Koch represented Waterkeeper from September 5, 2017 to April 24, 2018 as lead counsel and participated in every phase of the case development and litigation during that time. Koch Decl., ¶¶ 13-14. Koch spent a total of 48.30 hours on the matter and requests a rate of $630 per hour. Koch Decl., ¶¶ 9, 13. Koch ended her representation of Waterkeeper in May 2018 and Cooper took over as lead counsel. Koch Decl., ¶15.

Kelly represented Waterkeeper in both the administrative and litigation phases of this case between December 7, 2015 and August 9, 2018, spending a total of 133.82 hours on the matter during this period. Kelly Decl., ¶11, Ex. A. 65.62 of these hours were spent pursuing administrative remedies, including by petition to the State Board, and another 68.2 hours assisting counsel in the pleadings stage of the mandamus actions. Id. Kelly requests a rate of $475 per hour. Kelly Decl., ¶¶ 7-9.

Clark spent a total of 22.1 hours on the matter. Clark Decl., ¶14. Between October 17, 2018, and September 6, 2019, Clark worked on Waterkeeper’s opposition to the first demurrer the State Board filed in the action, spending 8.8 hours in finalizing the opposition and preparing for argument. Clark Decl., ¶11. Between June and August 4, 2020, Clark spent 9.2 hours participating in the drafting of the reply trial briefing and in preparation for the trial. Clark Decl., ¶12. Clark spent 4.2 hours preparing the present motion. Pugsley Decl., ¶31, Ex. B. Clark requests a rate of $630 per hour. Clark Decl., ¶¶ 9-10.

Pugsley spent a total of 734.1 hours on the matter as Waterkeeper’s Senior Staff Attorney, which includes, but is not limited to, time spent researching and drafting memoranda assessing the issues likely to arise, participating in the administrative processes before the Regional and State Water Boards, working on the Petitions for Writs of Mandate; working on the partial consolidation of the cases; working on typical pre-trial notices and motions; participating in the demurrer meet-and-confer process; reviewing the demurrers and drafting and editing sections of the opposition to the demurrers; reviewing and editing the interrogatories to the State Board; reviewing the 11,000+ pages of “record” submitted by the State Board; drafting large sections of Waterkeeper’s briefs and reviewing and editing all briefs; reviewing and editing Requests for Judicial Notice, and drafting and editing Waterkeeper’s proposed writs and judgments, among other activities. Pugsley Decl., ¶¶ 3, 29, 38, 39, Ex. A. Pugsley spent an additional 22.4 hours on the instant motion. Pugsley Decl., ¶31, Ex. B. Pugsley requests a rate of $758 per hour. Pugsley Decl., ¶29, Ex. A.

Pugsley separated the time he spent on paralegal tasks, totaling 43.2 hours, and seek recovery for that time at a paralegal rate of $150 per hour. Pugsley Decl., ¶41, Ex. C.

Paralegal Hollinger spent 48.7 hours assisting Cooper from April 1, 2020 through entry of judgment and has spent an additional 95.1 hours to date in preparing the instant fee motion. Cooper Decl., ¶40, Exs. C, D. The amounts for total hours expended total $21,570. Id. Cooper is familiar with the hourly rates charged for paralegals in the Los Angeles Area market and opines that Hollinger’s billing rate of $150 per hour is within the range of prevailing market rates for paralegals during the relevant period in the greater Los Angeles Metropolitan Area. Cooper Decl., ¶32.

Attorneys Black, Carstens, and Minteer of Chatten-Brown, Carstens & Minteer, LLP worked on researching and drafting the Petition for Writ of Mandate, drafting the responses to the demurrers, drafting the opening brief, and drafting the reply brief. Black Decl., ¶¶ 5, 8, Ex. A. Black spent 80.1 hours on the matter at a rate of $525 per hour.[3] Black Decl. ¶5, Ex. A. Minteer spent one hour on the matter at $675 per hour. Id. Carstens spent 3.7 hours on the matter at $775 per hour. Id. Chatten-Brown, Carstens & Minteer, LLP also incurred 0.3 hours of paralegal work at $170 per hour. Id. Black opines that the rates requested for Chatten-Brown, Carstens & Minteer, LLP attorneys are reasonable and consistent with awards they received in other matters, as well as those obtained by other attorneys practicing environmental and land use law in Los Angeles. Black Decl., ¶¶ 13-19.

Cooper opines that the rates requested by himself, Koch, Pugsley, and Black are within the reasonable 2020 market rate in the Los Angeles/Orange County metropolitan area for attorneys with their skill, experience, and reputation. Cooper Decl., ¶¶ 18, 24, 29, 31. Cooper’s opinion is based on his familiarity with market rates charged by attorneys practicing environmental and natural resources law in the San Francisco Bay Area, the greater Los Angeles Metropolitan area, and the San Diego area and his previous evaluations of such rates, which he used to support fee applications both for his firm and for his colleagues seeking fees in other citizen enforcement actions. Cooper Decl., ¶¶ 10-14. The requested rates are also consistent with those awarded in Wishtoyo Found. v. United Water Conservation Dist., (2:16-cv-03869-DOC-PLA). Cooper Decl., ¶¶ 15-17.

b. Supporting Declarations

Attorney Christopher Sproul (“Sproul”) opines that the rates requested by Cooper, Koch, Kelly, Black, and Pugsley are well within the range of non-contingent market rates charged for reasonably similar services by Los Angeles Area attorneys of reasonably similar qualifications and experience. Sproul Decl., ¶14. Sproul’s opinion is based on his review of market data and attorney fee awards in 2018 and 2019 in cases involving various types of complex civil litigation in the district court for the Central District of California, as well as awards in historic cases adjusted for inflation. Sproul Decl., ¶¶ 16-63.

Attorney Michael Lozeau opines that the rates requested by Cooper, Pugsley, and Black are reasonable and within the range requested by attorneys of comparable skill and experience in the Los Angeles area. Lozeau Decl., ¶¶ 22-28, 31. Lozeau’s opinion is based on his familiarity and experience with the prevailing market rate for attorneys of comparable experience, his review of the records kept by Waterkeeper’s counsel, his review of recent surveys of billing rates for partners and associates published annually by the National Law Journal in 2016 and 2017, his knowledge of awards in similar cases, and comparison to the adjusted Laffey Matrix. Lozeau Decl., ¶¶ 13-21, 27-30.

Attorney Drevet Hunt (“Hunt”) opines that the rates requested by Cooper, Koch, and Pugsley are within the range of prevailing market rates for attorneys and paralegals with comparable experience, expertise and skill practicing during this period in the greater Los Angeles Metropolitan area. Hunt Decl., ¶¶ 21-22. Hunt’s opinion is based on his familiarity with the commercial rates charged by attorneys of my experience and skill in the greater Los Angeles Metropolitan area as well as with court awarded rates for attorneys in the Central District and other sources of rate information. Hunt Decl., ¶¶ 13-15, 20, 24.

2. State Board’s Evidence

Waterkeeper filed four nearly identical writ petitions against the Regional Board and the State Board. Katz Decl., ¶2. Waterkeeper alleged that the Regional Board was required to conduct a waste and unreasonable use analysis before it reissued water quality permits to four publicly owned treatment works (“POTWs”) under the Clean Water Act and California Water Code. Id. Waterkeeper also alleged that the Regional Board was required and failed to perform a CEQA analysis and failed to afford Waterkeeper due process when issuing the Hyperion permit. Id.

Waterkeeper voluntarily dismissed its due process claim. Id. The court sustained the Regional Board’s demurrer finding that CEQA did not apply to the Regional Board’s issuance of these permits, and that the Regional Board did not have a duty to consider whether the four POTWs’ wastewater discharges were wasteful or unreasonable. Id.

Waterkeeper also alleged that, wholly independent of the Regional Board’s reissuance of the four permits, the State Board had a duty to analyze whether the POTWs’ discharges were wasteful or unreasonable. Katz Decl., ¶3. The court overruled the State Board’s demurrer and granted the writ after trial. Id. The State Board has appealed, and Waterkeeper has cross-appealed. Id.

Waterkeeper filed a memorandum of costs seeking to recover filing fees, to which the State Board did not object. Id.

The Regional Board prepared an administrative record of its proceedings related to its reissuance of the permits issued to the four POTWs. Katz Decl., ¶5. That administrative record was never submitted to the court because the Regional Board’s demurrer was sustained. Id. Waterkeeper’s claims against the Regional Board were all either voluntarily dismissed after a demurrer meet-and-confer or dismissed following demurrer. Katz Decl., ¶6.

Waterkeeper filed a notice of related cases, seeking to relate the four cases to a different case Waterkeeper had filed against the Regional Board pending before Judge Fruin. Katz Decl., ¶7. The Regional Board responded to the notice of related cases arguing that these four cases were not related to the earlier case. Id. Waterkeeper persisted in asserting its position, and Judge Fruin conducted a hearing on the issue on December 1, 2017. Id. Judge Fruin ultimately agreed with the Regional Board’s arguments and issued an order unrelating the cases. Id.

Waterkeeper opposed relating these cases to the Wishtoyo I and II cases previously decided by the court. Katz Decl., ¶8, Ex. B. Waterkeeper stated that the claims in this matter are not the same or similar to the claims litigated in Wishtoyo I or Wishtoyo II. Id.

Notice of entry of judgment was served in this case on October 9, 2020. Katz Decl., ¶11. Waterkeeper served its memorandum of costs on October 15, 2020, seeking recover of $1,981.42 in filing fees. Katz Decl., ¶11, Ex. E.

Attorney Melissa A. Thorme represented Real Party-in-Interest the City of Los Angeles (“City”) in the matter. Thorme Decl., ¶2. Thorme’s hourly rate for the matter was $375 per hour, discounted from her regular rate of $415 per hour due to her contractual agreement and long-term relationship with the City. Thorme Decl., ¶4. The City incurred a total amount of $72,566.53 for Thorme’s services for the matter. Thorme Decl., ¶5.

The State Board retained Gary Greenfield (“Greenfield”) to provide an analysis and opinion of the reasonableness of the rates sought by Waterkeeper’s counsel. Greenfield Decl., ¶1. Greenfield reviewed the motion, the memorandum of points and authorities, the declarations, the attached time and expense entries of Waterkeeper’s counsel and the other exhibits filed in support of the motion. Greenfield Decl., ¶12, Ex. 3.

Greenfield created a database of the time and expense entries filed in support of the motion which revealed various problems with the billing entries of Waterkeeper’s counsel. Greenfield Decl., ¶¶ 14-15. There were numerous problems with the time and expense entries. Greenfield Decl., ¶25. A number of entries had no descriptions. Id., Ex. 4. There were expense entries where there were no amounts indicated. Id., Ex. 5. There were a number of entries where the work description had no date or indication of the time billed. Id. There were a number of entries where the amounts billed for individual tasks in an entry did not agree with the total amount billed for the entry. Id., Ex. 6.

Waterkeeper’s description of the complexity of the action does not appear accurate. Greenfield Decl., ¶27. The fact that an issue is novel or that there are a number of legal issues that need to be addressed do not make an action complex. Greenfield Decl., ¶28. While the legal issues were not necessarily simple, the action was a relatively straightforward mandamus action. Greenfield Decl., ¶29. The major components were the filing of the four Petitions which were partially consolidated because they all raised similar issues, the joint demurrer by the respondents, the briefing for the final hearing, and the hearing itself which consisted entirely of oral argument and lasted less than three hours. Id.

Contrary to Waterkeeper’s claim that there was extensive discovery, there was only one set of 16 straightforward interrogatories by Waterkeeper and responses from Respondent. Respondent served no written discovery. There were no depositions. There was no document discovery. Greenfield Decl., ¶30.

There were a number of time entries for work which was not appropriate to bill, either to a fee-paying client or to an opponent in a private attorney general case such as this, which should not be compensated in this case. Greenfield Decl., ¶39. Such entries include: (1) attempting to interest additional law firms in assisting in the litigation and attempting to obtain additional funding for the litigation; (2) work appropriate for secretarial or clerical personnel such as scanning, photocopying, serving and filing documents and related issues, and inputting edits and preparing tables of contents and authorities for filings; (3) work that is part of a law firm’s business operations and not properly chargeable to a fee-paying client or opponent in a fee-shifting case, such as working on a retention agreement and dealing with changes of firms and personnel; (4) dealing with errors by the law firm in court filings; (5) other miscellaneous entries such as communicating with Waterkeeper’s board, dealing with a press release, travel between San Francisco and Los Angeles, basic research (research in areas that a client would expect a lawyer to be familiar with as part of their education or experience and not to be billed for), and work related to other cases (such as the Wishtoyo case). Greenfield Decl., ¶40, Exs. 7-10.

Waterkeeper also seeks expenses that are inappropriate or for which there is inadequate information provided. Greenfield Decl., ¶52. Waterkeeper is seeking to recover $799 for the purchase of a rate survey. Greenfield Decl., ¶53, Ex. 18. It is not appropriate to charge a client or opponent for the purchase of publications, particularly those that will likely be of use in other cases. Id.

Waterkeeper’s counsel used “block-billing” for a substantial number of the time entries, making it impossible to precisely quantify the time for the various activities in the block-billed entries. Greenfield Decl., ¶58. Greenfield opines that Waterkeeper’s billed hours should be reduced by 10% to account for the various issues in the time entries. Greenfield Decl., ¶63, Ex. 1. The requested rates should be reduced by 25%. Greenfield Decl., ¶64, Ex. 1.

Waterkeeper’s counsel also billed for excessive time for the work indicated. Greenfield Decl., ¶¶ 41-42. Examples include: (1) 7.1 hours billed by Kelly on preparing for the hearing on the Notice of Related Cases hearing; (2) 3.3 hours by Kelly for attending the Notice of Related Cases hearing itself (the task in the entry only says .3 hours); (3) 7.0 hours by Kelly for which there is no description but which appears to be related to the hearing because of the entries of other billers; (4) three people attending a status conference, with one person traveling from San Francisco and billing the travel time and related expenses; (5) 3.7 hours by Pugsley for “review pleadings for TSC” before the first trial setting conference when the only pleadings were the Petitions and the Demurrer; and (6) between 130 and 140 hours of time billed for preparing for the two demurrer hearings. Greenfield Decl., ¶42, Ex. 21.

Greenfield prepared separate database reports for entries relating to the work on the administrative proceedings, opposing the demurrers, preparation of the administrative record of the Regional Board proceedings, and relating to Waterkeeper’s unsuccessful attempt to relate a fifth case. Greenfield Decl., ¶¶ 43-47, Exs. 12-15.

Several of the sources of the rate information which Waterkeeper relies upon are not provided with the motion (the Declarations of Richard Pearl and of Barrett Litt) so Waterkeeper’s characterization of what they show cannot be confirmed or analyzed. Greenfield Decl., ¶48.

The sources of rates referred to in the various rate surveys relied upon by Waterkeeper only look at seniority level and are primarily rates of large firms. Greenfield Decl., ¶49. For example, Lozeau refers to the 2016 and 2017 National Law Journal rate surveys in his declaration which draw on the rates of a number of firms, but the rates he references in his declaration are all rates from very large firms in Los Angeles (other than one firm which is a bankruptcy firm). Id. Similarly, the 2018 Partnership Compensation Survey relied upon by Lozeau is based entirely on the rates of large firms (the AmLaw 200, the NLJ 350 and Global 100). While large firms are part of the market, they are not the entire market. Greenfield Decl., ¶49.

Waterkeeper’s counsel are seeking rates consistent with those of large commercial law firms in Los Angeles for lawyers of comparable seniority. Greenfield Decl., ¶50. However, in large commercial firm, in a well-managed case most of the hours are billed by the junior and mid-level personnel. Id. In this case, 78% of the time and 84% of the fees billed by lawyers were billed by the two most senior personnel: Pugsley and Cooper. Id. As a result, the blended rate for the lawyers (the average rate for each hour billed) was $739 per hour, that is, $739 per hour for every hour billed by a lawyer on the case. Id. While the rate being sought for Pugsley’s work as a lawyer is that of a senior lawyer, he billed a very substantial majority of the research time, most (if not all) of which would have been conducted by more junior lawyers at large firms. Greenfield Decl., ¶51, Ex. 17.

Waterkeeper chose, for its main outside counsel, lawyers located in San Francisco, despite the fact that the lawsuit was filed in Los Angeles. Waterkeeper is not entitled to recover the travel time or expenses for its San Francisco lawyers flying back and forth to Los Angeles, as well as for other travel-related expenses. Greenfield Decl., ¶54, Ex. 19.

Waterkeeper is seeking filing fees of $1,800 in its Memorandum of Costs, but also $1,760 in filing fees as an expense. Greenfield Decl., ¶55, Ex. 18. It is seeking to recover fees of $181.42 for electronic filing or service, but it appears that they may be seeking to recover these same expenses on the instant motion. Id. Waterkeeper is not entitled to recover the same expenses twice, but there is inadequate information provided in either the Memorandum of Costs or in the expense entries to determine whether or not these are duplicative. Id. Waterkeeper is also seeking recovery of expenses for which the amounts for each expense are not indicated, but which total $443.46. Greenfield Decl., ¶56.

D. Analysis

Petitioner Waterkeeper seeks a total attorney’s fee award of $1,917,687.81, including a lodestar of $944,077.30, with a multiplier of 2 on the contingent portion ($904,077.30) plus $86,374.20 for the instant motion, and $8,255.51 in costs. Respondent State Board does not dispute Waterkeeper’s entitlement to an award of attorneys’ fees[4] but argues that the requested rates and hours are unreasonable.

1. Entitlement to Fees

a. Successful Party

Courts take a “broad, pragmatic view of what constitutes a ‘successful party’” to effectuate the policy underlying section 1021.5. Graham v. DaimlerChrysler Corp. supra, 34 Cal.4th at 565. The party seeking attorney’s fees need not prevail on all alleged claims to qualify for an award. Harbor v. Deukmejian, supra, 43 Cal.3d at 1103. A party is successful under section 1021.5 if the party succeeds on “any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Maria P., supra, 43 Cal.3d at 1292.

Waterkeeper is a successful party for the purposes of section 1021.5. Waterkeeper secured a judgment in its favor that the State Board has a duty to comprehensively plan to prevent waste and unreasonable use in the discharge of wastewater and that no action undertaken as yet has fulfilled such duty. Mot. at 6.

b. Important Right Affecting the Public Interest

The first prong of the section 1021.5 test — whether a petitioner’s action has resulted in the enforcement of an important right affecting the public interest — requires a determination of the strength or societal importance of the right involved. Roybal v. Governing Bd. of Salinas City Elementary School Dist., (2008) 159 Cal.App.4th 1143, 1148. The right, whether constitutional or statutory, must be an important right affecting the public interest, not something involving trivial or peripheral public policies. Ibid. The societal importance of a right generally is determined by realistically assessing the significance of that right in terms of its relationship to the achievement of fundamental legislative goals. Robinson v. City of Chowchilla, (“Robinson”) (2011) 202 Cal.App.4th 382, 394. The type of “important rights” that may be the subject of litigation in which private attorney general fees may be awarded include environmental protection. Bui v. Nguyen, (2014) 230 Cal.App.4th 1357, 1366.

Waterkeeper has met this prong of the test. Its litigation sought to ensure the State Board complies with its constitutional duty to prevent waste and unreasonable use of water, as well as the Legislature’s directive to undertake all possible steps to encourage development of water recycling facilities in service of the peace, health, safety and welfare of the people of the state. Mot. at 9. The State Board’s compliance with its constitutional duties is an important right that affects the public interest.

c. Significant Benefit on the General Public

The second prong of the section 1021.5 test is whether plaintiff’s action has conferred a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons. The trial court is required to determine the significance of the benefit as well as the size of the group favorably impacted by making a realistic assessment, in light of all the circumstances, of the gains which have resulted in a particular case.  Bui v. Nguyen, (2014) 230 Cal.App.4th 1357, 1366.

As Waterkeeper notes, a significant benefit is implicit when a lawsuit leads to implementation of a fundamental legislative policy, such as those embodied in the California Constitution and Water Code. Starbird v. County of San Benito, (1981) 122 Cal.App.3d 657, 665. Waterkeeper’s litigation affects its members and all Californians, who will benefit from analysis and regulation of the POTWs’ wastewater discharges.

d. Necessity and Financial Burden of Private Enforcement

The third prong asks whether the necessity and financial burden of private enforcement are such as to make the award appropriate. This prong encompasses two issues: (1) whether private enforcement was necessary and (2) whether the financial burden of private enforcement warrants subsidizing the successful party’s attorneys. Lyons v. Chinese Hospital Assn., (“Lyons”) (2006) 136 Cal.App.4th 1331, 1348.

The necessity of private enforcement becomes clear when the action proceeds against only the governmental agencies that bear responsibility for the alleged violations. Id.; see Woodland Hills, supra, 23 Cal.3d at 941. As the State Board is a governmental agency, private enforcement was necessary.

Waterkeeper had no financial incentives in bringing the action and sought no monetary award or damages. Mot. at 10-11; see Millview County Water Dist. v. State Water Resources Control Bd., (2016) 4 Cal.App.5th 759, 768. Without financial incentives, it is plain that the cost of Waterkeeper’s legal victory transcended its personal interest in the suit. Woodland Hills, supra, 23 Cal.3d at 941. Waterkeeper is entitled to an award of section 1021.5 attorney’s fees.

2. Reasonableness

The court employs the “lodestar” analysis when looking to determine the “reasonableness” of an attorney’s fee award. The lodestar figure is calculated by multiplying the number of hours reasonably spent by the reasonable market billing rate. Serrano v. Priest, (1977) 20 Cal.3d 25, 48.

Waterkeeper’s counsel claim to have spent 1356.9 hours of merits-related work and 153 hours of motion-related work for a total of 1509.9 hours.

State Board argues that the motion should be denied entirely because Waterkeeper’s request for an award of $1,917,687.81 is outrageously unreasonable. Opp. at 7. The court may deny a fee request in its entirety when the request is outrageously unreasonable. Serrano v. Unruh, (1982) 32 Cal.3d 621, 635. Such denials are necessary to discourage unreasonable demands and greed. Ibid. While the court agrees that both the requested rates and hours are excessive – particularly where two senior attorneys performed 72% of the work, it does not find the request so outrageously unreasonable as to require complete denial of the motion.

a. Hourly Rates

Generally, the reasonable hourly rate used for the lodestar calculation is the rate prevailing in the community for similar work. Center for Biological Diversity v. County of San Bernardino, (2010) 188 Cal.App.4th 603, 616. In making its calculation, the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees, the difficulty or complexity of the litigation to which that skill was applied, and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases. 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc., (2016) 6 Cal.App.5th 426, 437.

Waterkeeper requests a rate of $875 per hour for Cooper, $630 per hour for Koch, $758 per hour for Pugsley, $630 per hour for Black, $475 per hour for Kelly, $630 per hour for Clark, and $150 per hour for paralegal services. Waterkeeper asserts that these rates are reasonable for lawyers with these levels of experience and are within the range of the market rates charged for reasonably similar services by attorneys of comparable skill, reputation, and experience for similarly complex litigation in the Los Angeles Area. Cooper Decl. at ¶¶ 2–8; Pugsley Decl. at ¶¶ 7–24; Koch Decl. at ¶¶ 2–8; Black Decl. at ¶¶ 9– 10; Kelly Decl. at ¶¶ 2–6; Clark Decl. at ¶¶ 2–8. Waterkeeper relies on declarations from Sproul, Lozeau, and Hunt in support of their assertion that their requested hourly rates are well within the range charged by Los Angeles law firms and are therefore presumptively reasonable. Sproul Decl., ¶14; Lozeau Decl., ¶¶ 22-28, 31; Hunt Decl., ¶¶ 21-22. Waterkeeper also asserts the rates are consistent with those set forth in the National Law Journal billing rate survey from 2014. Mot. at 15; Reply at 1.

State Board disputes that the requested rates are reasonable or representative of those attorneys in the community conducting litigation of the same type. Opp. at 8. State Board notes that Melissa Thorme, Esq., works in a private law firm and Real Party-in-Interest City retained her.[5] Thorme has a normal hourly rate of $415, which she discounted to $375 per hour for the City. Opp. at 8; Thorme Decl., ¶¶ 2-3. State Board argues that Thorme’s rate is the only direct evidence of the rate a Los Angeles attorney charges for this type of work and that it should represent the prevailing market rate. Opp. at 8.

State Board notes that Waterkeeper excludes from its evidence a recent award of attorneys’ fees by the Sacramento Superior Court to some of the same counsel in a similar type of mandamus case against the State Board. That court awarded lower hourly rates for Cooper ($665/hr), Koch ($525/hr), Pugsley ($510/hr), and Clark ($450/hr). Opp. at 9; Katz Decl. Ex. A. While these rates were for the Sacramento market, they are instructive because the case involved similar mandamus work. Opp. at 9.

State Board contends that Waterkeeper’s own declarations support a conclusion that they are asking for excessive rates. Opp. at 9. Black’s declaration reports hourly rate ranges of $300-550, $300-500, $300-550, $300-625, $225-650, and $300-700 for CEQA or land use mandamus work. Opp. at 9; Black Decl. ¶¶ 13-18. Lozeau’s declaration offers the only other hourly rate from a mandamus case and states that in 2018 the Los Angeles County Superior Court awarded hourly rates between $350-$600 in what appears to be a CEQA land use mandamus case. Lozeau Decl. ¶19. Opp. at 9.

State Board also challenges Waterkeeper’s reliance on the Wishtoyo cases as a basis to award their requested rates. Opp. at 9. Wishtoyo was not a mandamus case, but a highly technical and fact-intensive federal Endangered Species Act case that was significantly more complex. Wishtoyo involved extensive discovery, 18 separate motions, and 11 days of trial. Opp. at 9. The instant matter did not involve the same type of work and the rates awarded in Wishtoyo do not support Waterkeeper’s request for similar rates. Opp. at 9.

State Board notes that the supporting declarations of Sproul and Hunt concerning market rates fail to show any familiarity with the prevailing rates for mandamus work. Opp. at 10. The Cooper and Hunt declarations also rely on Pearl and Litt declarations purportedly filed by different attorneys in different cases, but these declarations were not submitted to the court. Opp. at 10.

State Board argues that Cooper’s and Pugsley’s rates should be reduced because they both consistently performed tasks that should have been delegated to more junior, lower hourly rate attorneys. Opp. at 10. As stated above, 72% of the hours were performed by Cooper and Pugsley, and they are the two attorneys seeking the highest hourly rate. Opp. at 10. An outsized number of their hours were spent on tasks like research, document filing, record review, and initial drafting that a paying client would have required be delegated to more junior attorneys who bill at lower hourly rates. Opp. at 10. State Board contends that the requested rates should be reduced by at least 25%. Opp. at 11.

Waterkeeper disputes that this case was less complex than Wishtoyo, but it does not deny that the federal case involved extensive discovery, 18 motions, and 11 days of trial. See Opp. at 9. Waterkeeper objects to State Board’s proposed 25% reduction, noting that State Board fails to account for the difference between the Sacramento and Los Angeles legal markets. Reply at 2. Waterkeeper also objects to reducing Cooper and Pugsley’s rates based on their failure to delegate. Reply at 3. The litigation focused on complicated legal issues, with limited discovery, a limited record, and few delegable tasks. Reply at 3. The senior attorneys took a case that commenced in 2017 from start to finish, naturally incurring a substantial number of hours. Reply at 3.

With the exception of the rate requested for paralegal services, the court finds the requested rates to be excessive. The court agrees with the State Board that seeking the highest rates for the two attorneys who performed 72% of the work, including tasks that a large law firm would delegate to junior associates, is not consistent with market rates in Los Angeles. The court exercises its discretion to reduce the rates based on its knowledge of market rates in Los Angeles, the rate charged by Thorme in representing the City, and Waterkeeper’s own declarations showing lower rate awards for similar work. Thorme Decl., ¶¶ 2-3; Black Decl. ¶¶ 13-18. Cooper’s rate is reduced to $656 per hour, Pugsley’s is reduced to $568 per hour, the rates of Koch, Clark, and Black are reduced to $472 per hour, and Kelly’s rate is reduced to $356 per hour.

With these reductions, the lodestar of $944,077.30 is reduced to $710,966.60.

b. Reasonable Number of Hours

An attorney’s fee award should ordinarily include compensation only for all the hours reasonably spent on the litigation. Ketchum v. Moses, (2001) 24 Cal.4th 1122, 1133. The trial court must carefully review attorney documentation of hours expended and eliminate padding in the form of inefficient or duplicative efforts. Id. at 1132.

Waterkeeper asserts the requested hours are reasonable as they were documented in detail, carefully reviewed and adjusted, and were reasonably spent. Mot. at 12-13. Waterkeeper contends that it efficiently litigated the matter and the hours spent were necessary due to State Board’s aggressive defense of the matter. Mot. at 13-14

i. Regional Board Claims

State Board challenges 362.93 hours incurred by Waterkeeper in pursuing it claims made against the Regional Board. Opp. at 12-13. Because the Regional Board is a distinct legal entity from State Board, Waterkeeper’s claims against the Regional Board differed from those against State Board. Opp. at 12. Waterkeeper was unsuccessful in all its claims against the Regional Board, and the hours incurred in pursuing those claims should not be compensable against State Board. Opp. at 12.

State Board specifically challenges 92.71 hours that Waterkeeper’s attorneys spent in the Regional Board’s administrative process of renewing the four NPDES permits, preparing the administrative record from the Regional Board’s proceeding, and pursuing claims against the Regional Board in this court for violating a mandatory duty, CEQA, and due process. Opp. at 12-13; Greenfield Decl., Exs. 12-14.

Attorneys’ fees may be awarded for work during administrative proceedings if the proceedings were useful and of a type ordinarily necessary to the vindication of the public interest litigated by the private party. Best v. California Apprenticeship Council, (1987) 193 Cal.App.3d 1448, 1459; Californians for Responsible Toxics Management v. Kizer, (1989) 211 Cal.App.3d 961, 970–72 (deducting from lodestar the hours spent on regional water board administrative proceedings and discovery).

Waterkeeper claims that it is entitled to compensation for its attorneys’ services during the Regional Board proceedings. Mot. at 14. Waterkeeper asserts that the Regional Board claims focused on the same four POTWs at issue against State Board and were based on the same common facts and legal theories. Reply at 2-3. Waterkeeper asserts that its work in the Regional Board administrative proceedings for permit issuance was useful and directly contributed to litigation against State Board, as shown by the fact that State Board’s “record” incorporated significant portions of the Regional Board administrative record. Reply at 3.

This is sufficient to show that Waterkeeper should fully recover for the administrative process. The administrative process before the Regional Board concerned the renewal of the NPDES permits for the four POTWs. State Board notes that Waterkeeper expressly argued in opposition to State Board’s demurrer that it was not seeking to compel State Board to review the Regional Board’s permitting decision. This is true, but it was necessary for Waterkeeper to participate in the Regional Board administrative process and claim the POTWs’ discharge is a waste/unreasonable use in order to bring its similar claim against State Board. Otherwise, State Board could have argued that the Regional Boards bear this responsibility in issuing permits. Waterkeeper has shown that the Regional Board administrative proceedings were useful and necessary to its pursuit of claims against State Board. The 92.71 hours will remain as part of the lodestar.

Waterkeeper’s claims against the Regional Board were ultimately dismissed after its demurrer was sustained and, as a result, the administrative record was never used. State Board should not have to pay the fees associated with this record preparation, and the 14.22 hours that Black, Koch, Kelly, and Pugsley spent preparing and reviewing the Regional Board administrative record must be eliminated. That administrative record was never used and was distinct from the documents that the parties stipulated into evidence. Katz Decl., ¶5. The lodestar will be reduced by 14.22 hours at the average reduced rate of $467 per hour, or $6,640.74. Greenfield Decl., Ex. 14.

Respondent represents that Waterkeeper spent 256 hours pursuing its claims against the Regional Board, which are not compensable. Opp. at 13; Greenfield Decl., Ex. 13. The entries for the 144 hours were spent on the demurrer hearings is included in this amount. Greenfield Decl., ¶42f, Ex. 21. These hours are not compensable as they were entirely separate from the claims against State Board and were dismissed following demurrer. However, the time entries do not specify whether the time was spent on Regional Board claims, State Board claims, or both. The court will allocate half of that time (128 hours) to Waterkeeper’s pursuit of its Regional Board claims. These hours are eliminated at the average reduced rate of $542 per hour, or $69,376.

The total lodestar reduction in relation to the Regional Board claims is $76,016.74. With this reduction, the lodestar of $710,966.60 is reduced to $634,949.86.

ii. Notice of Related Cases

Time spent on unnecessary legal skirmishes may be excised from an attorney’s fees award. Cal. Common Cause v. Duffy, (1987) 200 Cal.App.3d 730, 754.

State Board notes that Pugsley, Kelly, Koch, Black, and Cooper spent 32.42 hours on an improper attempt to relate the instant matter to a case concerning separate Regional Board administrative decision and argues that these hours should be removed from any fee award. Katz Decl. ¶7; Greenfield Decl. ¶¶ 42a-b, 47, Ex. 15.

Waterkeeper does not defend these hours. The 32.42 hours are removed at the average reduced rate of $504.80, a total of $16,356.62. The lodestar of $634,949.86 is reduced to $618,593.24.

iii. Secretarial/Clerical Time

State Board challenges 59.3 hours that Waterkeeper billed to perform secretarial/clerical tasks such as scanning, copying, assembling, and serving documents. Opp. at 13-14. As State Board correctly notes, these are tasks that should be delegated to non-billing staff and an attorney cannot bill a client for such tasks. In re Taco Bell Wage and Hour Actions, (E.D. Cal. 2016) 222 F.Supp.3d 813, 832 (attorney cannot recover for performing clerical tasks).

State Board shows that Pugsley, Kelly, Cooper, and the paralegal billed a total of 59.3 hours for secretarial/clerical work. Greenfield Decl., Ex. 8. However, not all of the challenged entries are solely for secretarial/clerical work. The entries include time spent working on the petitions and other documents, which is not secretarial/clerical work. These entries amount to a total of 35.3 hours, which will not be removed.

The total reduction for secretarial/clerical work is 24 hours at the average reduced rate of $432.50, or $10,380. With this reduction, the lodestar of $618,593.24 is reduced to $608,213.24.

iv. Administrative/Business Operation

State Board challenges 10.27 hours spent on firm business operations, such as preparing retainer agreements, drafting a case transfer memo when one attorney left the firm, and filing substitution of counsel and firm name change forms. Opp. at 14; Greenfield Decl. ¶40c, Ex. 9. Waterkeeper also seeks 4.55 hours soliciting funding and representation by other law firms. Greenfield Decl., ¶40a, Ex. 7. State Board asserts that such work is not appropriate to bill and should not be compensated. Opp. at 14; Greenfield Decl., ¶39.

The court agrees. Kelly, Pugsley, Cooper, and Koch billed a total of 14.82 hours for this work and the lodestar will be reduced by that amount at the average reduced rate of $513, or $7,602.66. Greenfield Decl., Exs. 7, 9. With this reduction, the lodestar of $608,213.24 is reduced to $600,610.58.

v. Correcting Errors in Filing

Respondent challenges 3.1 hours that Black, Cooper, Pugsley, and the paralegal expended to correct errors made in various filings, asserting that such errors should be borne by the attorneys who made them, not the client or the opposing party. Opp. at 14. The court agrees. The lodestar will be reduced by 3.1 hours at the average reduced rate of $461.50, or $1,430.65. Greenfield Decl., Ex. 10.

With this reduction the total lodestar of $600,610.58 is reduced to $599,179.93.

vi. Other Inappropriate Entries

State Board challenges 24.2 hours billed for tasks that it asserts are not entitled to compensation. Opp. at 14. These include participating as an amicus in the unsuccessful appeals of the Wishtoyo I and II litigation[6] and counsel’s time traveling to and from San Francisco. Opp. at 14. State Board argues that the time is not compensable because Waterkeeper admitted that the claims in the instant matter are not similar to those litigated in the Wishtoyo cases. Waterkeeper also has provided no evidence that would justify attorney travel time by showing that experienced environmental law attorneys were not available in Los Angeles to handle this litigation. Opp. at 14; Katz Decl., ¶8, Ex. B.

The court agrees that the amicus time of 4.9 hours is for work that is not compensable, but not the travel time. The lodestar will be reduced by 4.9 hours at the average reduced rate of $524.33, or $2,569.23. With this reduction, the lodestar of $599,179.93 is reduced to $596,610.70.

vii. Inaccurate or Insufficient Descriptions

State Board contends that a further 10% reduction to the remaining compensable hours is warranted due to Waterkeeper’s time entries containing many entries that are inaccurate, have vague descriptions or no descriptions, fail to specify the number of hours worked, are duplicative, or have discrepancies between the time identified in the description and the time recorded. Opp. at 14-15. State Board notes several specific entries exhibiting such issues. Greenfield Decl. ¶¶ 24-27, 32-38, 41-42.

Waterkeeper argues that a reduction is unwarranted because Greenfield only identifies a handful of inappropriate hours and fails to identify a pattern of excessive time. Reply at 3-4. The entries Greenfield identifies comprises only 2.4% of all the hours billed and do not justify a reduction when the rest of the entries are clear and detailed. Reply at 4.

The court agrees with Waterkeeper and no reduction is warranted. The total lodestar is $596,610.70.

c. Multiplier

“[T]he unadorned lodestar figure reflects the general local hourly rate for a fee-bearing case; it does not include any compensation for contingent risk, extraordinary skill, or any other factors a trial court may consider under Serrano III.” Ketchum v. Moses, (2001) 24 Cal.4th 1122, 1138. The factors to consider for adjustment to the lodestar include the novelty and difficulty of the litigation, the extent to which the litigation precluded other employment by the attorneys, the contingent nature of the fee award, the fact that an award against the state would ultimately fall on the taxpayers, the fact that the attorneys received public and charitable funding for the purpose of bringing lawsuits of the character involved, and the fact that the moneys awarded would inure not to the benefit of the individual lawyers but the organizations employing them. Ramos v. Coutnrywide Home Loans, Inc., (2000) 82 Cal.App.4th 615, 622-23.

Waterkeeper seeks a multiplier of 2 on the contingent portion of its work on the matter. Waterkeeper contends that a multiplier is justified based on the contingent nature of the work, the novelty, difficulty, and complexity of the matter, and the public interest value of the results achieved. Mot. at 16-19; Reply at 5-9.

i. Contingent Nature of the Work

Waterkeeper asserts that it took significant risk in accepting the case as lead counsel Koch and Cooper took the matter on an entirely contingent fee basis. Mot. at 17; Reply at 5-6; Cooper Decl., ¶19. Waterkeeper notes that it obtained rotating grant funding of $40,000 to support the case (repayable upon recovery in this action), partially covering costs and staff attorney hours incurred, and allowing reduced rate payments to the CEQA specialist outside counsel. Mot. at 17; Reply at 5-6. This rotating grant represents less than 4% of the fees and costs incurred in this action and Waterkeeper’s ability to recover compensation for over 96% their hours of work is entirely contingent on winning the cases and obtaining a fee award. Mot. at 17; Reply at 5-6.

State Board disputes that Waterkeeper is entitled to a multiplier on this basis. While Koch and Cooper worked on a contingent basis, neither Waterkeeper’s in-house attorney (Pugsley) nor Black took the case on an entirely contingent basis. Opp. at 15. Black declares that her firm was compensated for all her time, albeit at a reduced hourly rate. Opp. at 16. Pugsley admits that he received his full salary regardless of the outcome of the litigation. Opp. at 15.

State Board asserts that none of Waterkeeper’s attorneys have demonstrated that they were required to refuse other paying work to pursue the instant matter. Opp. at 16. The other cases that Pugsley asserts Waterkeeper declined to bring were also contingency fee cases, not fee-paying cases. Turning down a contingent fee case to work on this contingent fee case is not a contingent risk. Opp. at 16. Black fails to explain why working on this case for only 85 hours over three years (averaging 3 hours per month) precluded her firm from taking other paying cases. Opp. at 18. Cooper and Koch collectively worked less than 300 hours over three years and neither of them states that they had to turn down other fee-paying work. Opp. at 18.

The court agrees partly with State Board. Waterkeeper’s attorneys – particularly Pugsley and Black -- did not take the matter entirely as a contingent fee case and Waterkeeper admits it received modest funding to pursue the matter. Still, there was a partial contingency for Cooper and Koch representing about 20% of the effort. Waterkeeper also is correct that its receipt of a grant has no bearing on the award of a multiplier. Reply at 10. This factor works somewhat in favor of a multiplier.

ii. Novelty, Difficulty, and Complexity

Waterkeeper contends that a multiplier is appropriate because the factual and legal issues presented, and specifically the defenses presented by the State Board and the Cities, were complex, raising state law procedural questions, constitutional and statutory construction, the administrative relationship between the State and Regional Boards, and the interface between State and Federal law. Mot. at 18; Reply at 7. The court acknowledged the dearth of case law that was fully on-point. Reply at 7. Litigating the case required particular skill and expertise beyond the level that might be expected from counsel billing at the rates requested by Waterkeeper’s counsel. Mot. at 18; Reply at 7.

The court agrees that the matter was novel, and State Board’s declarant, Greenfield, acknowledges that the case was difficult; he argues only that it was not complex. Greenfield Decl., ¶29. Greenfield is correct. The case was novel, difficult, but not complex. The entire procedure consisted of the four Petitions, a demurrer, basic written discovery by Waterkeeper (none from State Board), and a trial (which was a hearing). Opp. at 16-17.

Moreover, Waterkeeper is already seeking high hourly rates based on the expertise of its attorneys. Cooper Decl. ¶¶ 3, 22, 24, 31, 34. A multiplier is properly denied where an environmental case is litigated by appropriately compensated specialists because they need not reinvent the wheel at every turn. SOURCE, supra, 235 Cal.App.4th at 1188. While the court has reduced those rates, that does not alter the fact that Waterkeeper’s attorneys are experts who participated in the Regional Board proceeding and did not need to research basic Water Code and other issues. This factor works somewhat in favor of a multiplier because of its novelty and difficulty.

iii. Importance to the Public

Waterkeeper asserts that the importance of the matter to the public warrants a fee multiplier, as its actions resulted in the court confirming the State Board’s duty to consider the reasonable and beneficial use of treated wastewater in its comprehensive planning and allocation of the public’s waters. The matter will have a substantial impact on California water policy. Mot. at 18; Reply at 8-9.

As State Board notes, a case’s purported importance to the public is not a factor generally recognized in determination of whether a multiplier is warranted in a section 1021.5 case. Opp. at 17. Waterkeeper relies on Coalition of Los Angeles Planning v. Bd. of Supervisors, (“CLAP”) (1977) 76 Cal.App.3d 241, in arguing that public importance is a relevant factor, but its reliance is misplaced. CLAP was not a section 1021.5 case and instead was decided under a substantial benefit theory. Id. at 249. Cases that rely on CLAP do so for the proposition that the case’s benefit to the public warrants section 1021.5 entitlement to fees, not a multiplier enhancement. See, e.g., Center for Biological Diversity v. County of San Bernardino, (2010) 185 Cal.App.4th 866, 895.[7]

The purported importance of the matter to the public does not justify a fee multiplier.

iv. Lack of Success

A petitioner’s lack of success on legally distinct causes of action can weigh against a positive multiplier or warrant imposition of a negative multiplier. Chavez v. City of Los Angeles, (2010) 47 Cal.4th 970, 989; Toxics, supra, 211 Cal.App.3d at 975.

State Board argues that Waterkeeper’s partial success weighs against granting it a multiplier. Waterkeeper was unsuccessful against the Regional Board, which the court dismissed after finding that it did not have a mandatory duty to consider waste and unreasonable use when issuing water quality permits. Opp. at 18. Waterkeeper also did not achieve its objective of requiring regional boards to conduct a waste and unreasonable use analysis as part of their routine processing of NPDES permits and only achieved the more modest result of requiring the State Board to conduct a waste and unreasonable use analysis of only four dischargers based on discharge-specific evidence that petitioner presented. Opp. at 18-19.

It is true that Waterkeeper did not achieve complete success. However, the court has reduced the lodestar by the time Waterkeeper’s attorneys spent in opposing the Regional Board’s demurrer in this lawsuit. It would be inappropriate to consider this lack of success a second time. Waterkeeper’s degree of success is sufficient to prevent any reduction to the lodestar, but it does not support or undermine entitlement to a multiplier.

v. Impact on Taxpayers

The fact that an award against the state would ultimately fall to the taxpayers can weigh against a positive multiplier. Serrano v. Priest, (1977) 20 Cal.3d 25, 49; Northwest Energetic Services, LLC v. Cal. Franchise Tax Bd., (2008) 159 Cal.App.4th 841, 881.

State Board asserts that a multiplier should be denied because an award would ultimately fall to the taxpayers. Opp. at 19. State Board notes that the State has been in a declared state of financial emergency since June 25, 2020 due to the COVID-19 pandemic, and its expected adverse impacts to the state budget in the coming years. Katz Decl., Ex. C. Based on the fiscal emergency, almost all state employees, including its attorneys, agreed to a two-day per month reduction in pay for two years to generate about $3 billion in savings to the state budget. Katz Decl. Ex. D. The court should decline to award a multiplier to effectively double their hourly rates when the State is simultaneously imposing drastic fiscal measures to conserve state resources to address the pandemic and its fiscal effects. Opp. at 19.

Waterkeeper correctly disputes that the State’s economic problems justifies denial of a multiplier, noting that courts have awarded multipliers in mandamus cases based on a public agency’s litigation tenacity. Edgerton v. State Personnel Bd., (2000) 83 Cal.App.4th 1350, 1356. Since the purpose of a mandamus case is to compel government action, every successful case where fees are sought implicates taxpayers. Reply at 9. This factor does not work against a modest multiplier.

v. Conclusion

Waterkeeper’s request for a multiplier of 2 is denied. Waterkeeper is awarded a multiplier of 1.2. Waterkeeper’s total fee with the multiplier is $715,932.84.

2. Motion Fee

The litigation over a fee rarely, if ever, should have a multiplier because the factors considered for a multiplier are not the same for a fee motion. Graham v. DaimlerChrysler Corp., (2005) 34 Cal.4th 553, 582-84. Therefore, the court considers motion fees after the multiplier for the lodestar.

State Board challenges the 153 hours Waterkeeper spent preparing the instant motion, arguing the amount sought is excessive. Opp. at 19-20. Waterkeeper seeks $61,277.70 for the motion. Cooper Decl. Exs. B and D; Clark Decl. Ex. A; Pugsley Decl. Ex. B. After including time spent on the reply, Waterkeeper seeks a total of $86,374.20. Reply at 10, Ex. A.

This is excessive. The court has no doubt that the attorney time was incurred, but that does not make it reasonable. Fee motions should not swallow significant parts of the overall fees. Save Our Uniquely Rural Community Environment v. County of San Bernardino, (“SOURCE”) (2015) 235 Cal.App.4th 1179 (76 hours to prepare a fee motion was grossly inflated and patently unreasonable).

A reasonable fee for the motion is $30,000. Added to the lodestar plus multiplier, the fee award is $745,932.84.

3. Costs

Waterkeeper’s motion includes a request for costs in the amount of $8,255.51. Mot. at 2, 19. These alleged costs are not identified in the notice of motion, not itemized in the motion, and not supported by any declaration or other documentary evidence and they are denied. Moreover, State Board correctly notes that requesting such costs would be untimely. Opp. at 20.

A memorandum of costs “must” be filed within 15 days of service of notice of entry of judgment. CRC 3.1700(b)(1). The notice of entry of judgment for the matter was served on October 9, 2020. Waterkeeper’s last day to file a memorandum of costs was on October 26, 2020. Waterkeeper previously filed a memorandum of costs seeking $1,981.42 on October 15, 2020. Katz Decl., Ex. E.

Waterkeeper notes (Reply at 4-5) that the court has discretion to award costs to a prevailing party concurrently with attorneys’ fees. See, e.g., Hull v. Rossi, (1993) 13 Cal.App.4th 1763, 1766; California Lab. Federation v. Occupational Safety & Health Stds. Bd., (1992) 5 Cal.App.4th 985, 989. While this is true, the fact remains that Waterkeeper failed properly identify or itemize its claimed costs other than a vague reference to travel costs incurred in litigating the action. Reply at 5.

The claimed costs of $8,255.51 are denied.

E. Conclusion

Waterkeeper’s motion for attorney’s fees is granted in the amount of $745,932.84.


[1] Waterkeeper’s reply brief is Bates-stamped in addition to the page numbering. For the purposes of citation, the court refers to the reply brief’s page numbers.

[2] Although the plant is owned jointly by Los Angeles and Glendale, for convenience it is referred to as the Glendale plant.

[3] The Black declaration contradicts Waterkeeper’s motion, which states that Black requests an hourly rate of $630. Mot. at 15. The number of hours billed also differs: 80.1 hours in the declaration and 85.1 in the motion. The court assumes the numbers in the declaration are the correct figures.

[4] State Board suggests that it could challenge Waterkeeper’s entitlement to fees depending on the outcome of the appeal and cross-appeal. The court is not certain what this means.

[5] State Board incorrectly states that Thorme was retained by Real Party County of Los Angeles. Opp. at 8.

[6] Waterkeeper concedes that it mistakenly claimed 4.9 hours for this work. Reply at 4, n.1.

[7] Waterkeeper correctly notes (Reply at 9) that Flannery v. Cal. Highway Patrol, (1998) 61 Cal.App.4th 629, on which State Board relies, is inapposite because it was an award of fees pursuant to FEHA, rather than section 1021.5.

Case Number: BS171009    Hearing Date: August 04, 2020    Dept: 85

Los Angeles Waterkeeper v. State Water Resources Control Board, et al., BS171009

Tentative decision on petition for writ of mandate: granted in part

Petitioner Los Angeles Waterkeeper (“Waterkeeper”), in the consolidated briefing and trial of BS171009 (Burbank), BS171010 (Glendale), BS171011 (Tillman), and BS171012 (Hyperion), petitions for a writ of traditional mandamus directing State Water Resources Control Board (“State Board”) to (1) determine whether the ongoing discharge of wastewater from four Publicly Owned Treatment Works (“POTWs”) constituted a reasonable and beneficial use of that water and (2) prevent the ongoing waste and unreasonable use of such wastewater.

The court has read and considered the moving papers, oppositions, and reply, and renders the following decision.

A. Statement of the Case

1. Petition BS171009

Petitioner Waterkeeper commenced this proceeding on September 26, 2017, alleging causes of action under the California Constitution Article X, section 2 (“Article X, section 2”), the California Environmental Quality Act (“CEQA”), and the Water Code. The verified Petition alleges in pertinent part as follows.

Respondent Regional Water Quality Control Board, Los Angeles Region (“Regional Board”) erred in approving the Waste Discharge Requirements (“WDR” or “permit”) and a National Pollutant Discharge Elimination System (“NPDES”) permit for Burbank’s Water Reclamation Plant (“Burbank plant”). Article X, section 2 places a non-discretionary affirmative duty on the Regional Board to determine whether a water use is reasonable and beneficial and to prevent waste and unreasonable use of all water resources in California. Water Code section 100 (“section 100”) also requires the Regional Board to determine whether a water use is reasonable and beneficial and to prevent waste. In approving the WDR and NPDES permit for the Burbank plant, the Regional Board failed to act in a manner required by law and failed to perform a mandatory duty by failing to analyze whether reauthorizing the discharge constitutes a waste and unreasonable use of a water resource.

The Regional Board also violated CEQA by failing to conduct the analysis required, include findings regarding feasible alternatives that could lessen environmental impacts, include findings regarding cumulative impacts of multiple WDR approvals, and then base its findings on substantial evidence.

The State Board failed to act in a manner required by law and failed to perform its mandatory duties pursuant to Article X, section 2 and Water Code sections 100 and 275. Section 100 places on the State Board a non-discretionary affirmative duty to determine whether a water use is reasonable and beneficial and to prevent the waste and unreasonable use of all water resources in California. Water Code section 275 (“section 275”) directs the State Board to take all appropriate proceedings or actions before executive, legislative, or judicial agencies to prevent waste, unreasonable use, or unreasonable methods of use.

The State Board failed to perform its duty by failing to determine whether the discharge from the Burbank plant is a reasonable and beneficial use of a water resource and/or whether the rate of discharge constitutes a reasonable and beneficial use. The State Board failed to take all appropriate proceedings or actions as required by law to prevent the waste, unreasonable use, and unreasonable method of use of water.

2. Petition BS171010

Petitioner Waterkeeper commenced this proceeding on September 26, 2017, alleging causes of action under Article X, section 2, CEQA, and the Water Code. The verified Petition alleges in pertinent part as follows.

The Regional Board erred in approving the WDR and NPDES permit for the Los Angeles and Glendale Water Reclamation Plant (“Glendale plant”).[1] Article X, section 2 places a non-discretionary affirmative duty on the Regional Board to determine whether a water use is reasonable and beneficial and to prevent waste and unreasonable use of all water resources in California. Section 100 also requires the Regional Board to determine whether a water use is reasonable and beneficial and to prevent waste. In approving the WDR and NPDES permit for the Glendale plant, the Regional Board failed to act in a manner required by law and failed to perform a mandatory duty by failing to analyze whether authorizing the discharge constitutes a waste and unreasonable use of a water resource.

The Regional Board also violated CEQA by failing to conduct the analysis required, include findings regarding feasible alternatives that could lessen environmental impacts, include findings regarding cumulative impacts of multiple WDR approvals, and base its findings on substantial evidence.

The State Board failed to act in a manner required by law and failed to perform its mandatory duties pursuant to Article X, section 2 and sections 100 and 275. Section 100 places a non-discretionary affirmative duty on the State Board to determine whether a water use is reasonable and beneficial and to prevent the waste and unreasonable use of all water resources in California. Section 275 directs the State Board to take all appropriate proceedings or actions before executive, legislative, or judicial agencies to prevent waste, unreasonable use, or unreasonable method of use.

The State Board failed to perform its duty by failing to determine whether the discharge from the Glendale plant is a reasonable and beneficial use of a water resource and/or whether the rate of discharge constitutes a reasonable and beneficial use. The State Board failed to take all appropriate proceedings or actions as required by law to prevent the waste, unreasonable use, and unreasonable method of use of water.

3. Petition BS171011

Petitioner Waterkeeper commenced this proceeding on September 26, 2017, alleging causes of action under Article X, CEQA, and the Water Code. The verified Petition alleges in pertinent part as follows.

The Regional Board erred in approving the WDR and NPDES permit for Los Angeles’ Donald C. Tillman Water Reclamation Plant (“Tillman plant”). Article X, section 2 places a non-discretionary affirmative duty on the Regional Board to determine whether a water use is reasonable and beneficial and to prevent waste and unreasonable use of all water resources in California. Section 100 also requires the Regional Board to determine whether a water use is reasonable and beneficial and to prevent waste. In approving the WDR and NPDES permit for the Tillman plant, the Regional Board failed to act in a manner required by law and failed to perform a mandatory duty by failing to analyze whether reauthorizing the discharge constitutes a waste and unreasonable use of a water resource.

The Regional Board also violated CEQA by failing to conduct the analysis required, include findings regarding feasible alternatives that could lessen environmental impacts, include findings regarding cumulative impacts of multiple WDR approvals, and base its findings on substantial evidence.

The State Board failed to act in a manner required by law and failed to perform its mandatory duties pursuant to Article X, section 2 and sections 100 and 275. Section 100 places a non-discretionary affirmative duty on the State Board to determine whether a water use is reasonable and beneficial and to prevent the waste and unreasonable use of all water resources in California. Section 275 directs the State Board to take all appropriate proceedings or actions before executive, legislative, or judicial agencies to prevent waste, unreasonable use, or unreasonable method of use.

The State Board failed to perform its duty by failing to determine whether the discharge from the Tillman plant is a reasonable and beneficial use of a water resource and/or whether the rate of discharge constitutes a reasonable and beneficial use. The State Board failed to take all appropriate proceedings or actions as required by law to prevent the waste, unreasonable use, and unreasonable method of use of water.

4. Petition BS171012

Petitioner Waterkeeper commenced this proceeding on September 26, 2017, alleging causes of action under Article X, CEQA, and the Water Code. The operative pleading is the First Amended Petition (“FAP”), filed on November 2, 2018. The FAP alleges in pertinent part as follows.

The Regional Board erred in approving the WDR and NPDES permit for Los Angeles’ Hyperion Water Reclamation Plant (“Hyperion plant”). Article X, section 2 places a non-discretionary affirmative duty on the Regional Board to determine whether a water use is reasonable and beneficial and to prevent waste and unreasonable use of all water resources in California. Section 100 also requires the Regional Board to determine whether a water use is reasonable and beneficial and to prevent waste. In approving the WDR and NPDES permit for the Hyperion plant, the Regional Board failed to act in a manner required by law and failed to perform a mandatory duty by failing to analyze whether reauthorizing the discharge constitutes a waste and unreasonable use of a water resource.

The State Board failed to act in a manner required by law and failed to perform its mandatory duties pursuant to Article X, section 2 and sections 100 and 275. Section 100 places a non-discretionary affirmative duty on the State Board to determine whether a water use is reasonable and beneficial and to prevent the waste and unreasonable use of all water resources in California. Section 275 directs the State Board to take all appropriate proceedings or actions before executive, legislative, or judicial agencies to prevent waste, unreasonable use, or unreasonable method of use.

The State Board failed to perform its duty by failing to determine whether the discharge from the Hyperion plant is a reasonable and beneficial use of a water resource and/or whether the rate of discharge constitutes a reasonable and beneficial use. The State Board failed to take all appropriate proceedings or actions as required by law to prevent the waste, unreasonable use, and unreasonable method of use of water.

5. Course of Proceedings

On October 12, 2018, Judge Palazuelos related Petitions BS171009, BS171010, BS171011, and BS171012 and consolidated them for briefing and trial. BS 171009 was designated as the lead case.

On September 6, 2019, the court overruled Respondents’ demurrers to the four consolidated Petitions as to the State Board and sustained them as to the Regional Board without leave to amend. The Regional Board was dismissed from the Petitions on October 10, 2019.

B. Standard of Review

A party may seek to set aside an agency decision by petitioning for either a writ of administrative mandamus (CCP §1094.5) or of traditional mandamus. CCP §1085. A petition for traditional mandamus is appropriate in all actions “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station....” CCP §1085. Traditional mandamus permits judicial review of ministerial duties as well as quasi-legislative and legislative acts. County of Del Norte v. City of Crescent City, (1999) 71 Cal.App.4th 965, 972.

A traditional writ of mandate is the method of compelling the performance of a legal, ministerial duty required by statute. See Rodriguez v. Solis, (1991) 1 Cal.App.4th 495, 501-02. Generally, mandamus will lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has a duty to perform, and (3) the petitioner has a clear and beneficial right to performance.” Pomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4th 578, 583-84 (internal citations omitted). Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretation. AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701.

In the absence of a ministerial duty, traditional mandamus relief is unavailable unless the petitioner can demonstrate an abuse of that discretion. An agency decision is an abuse of discretion only if it is “arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair.” Kahn v. Los Angeles City Employees’ Retirement System, (2010) 187 Cal.App.4th 98, 106. In applying this deferential test, a court “must 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.” Western States Petroleum Assn v. Superior Court, (1995) 9 Cal.4th 559, 577. Mandamus will not lie to compel the exercise of a public agency’s discretion in a particular manner. American Federation of State, County and Municipal Employees v. Metropolitan Water District of Southern California, (“AFSCME”) (2005) 126 Cal.App.4th 247, 261. It is available to compel an agency to exercise discretion where it has not done so (Los Angeles County Employees Assn. v. County of Los Angeles, (1973) 33 Cal.App.3d 1, 8), and to correct an abuse of discretion actually exercised. Manjares v. Newton, (1966) 64 Cal.2d 365, 370-71. In making this determination, the court may not substitute its judgment for that of the agency, whose decision must be upheld if reasonable minds may disagree as to its wisdom. Id. at 371. A writ will lie where the agency’s discretion can be exercised only in one way. Hurtado v. Superior Court, (1974) 11 Cal.3d 574, 579.

The existence and nature of a government agency’s statutory or constitutional mandatory duty is an issue of law for the court to decide without deference to the agency where no scientific or technical issue gives the agency an interpretive advantage. Asociacion de Gente Unida por el Agua v. Central Valley Regional Water Quality Control Board, (2012) 210 Cal.App.4th 1255, 1267.

No administrative record is required for traditional mandamus to compel performance of a ministerial duty or for abuse of discretion where there is no quasi-legislative action.

C. Governing Law

1. The Beneficial and Reasonable Use of Water

Ownership of California’s water is vested in the state’s residents, but a person or entity can acquire the right to divert water from its natural course for public or private use. Water Code §1478; Light v. State Water Resources Control Bd., (“Light”) (2014) 226 Ca1.App.4th 1463, 1477. California has a dual system of water rights which distinguishes between “riparian users” and “appropriators”. Riparian users possess water rights by virtue of owning the land next to water courses and have historically and presently have the right to take water out of that stream (known as a diversion) for use on their property. Appropriators hold the right to divert such water for use on non-contiguous lands. Id. at 1478. Post-1914 appropriators may possess water rights only through a permit issued by the State Board, but riparian users and pre-1914 appropriators do not need a permit. Id.

Prior to 1928, appropriative water rights holders had to use water reasonably, but riparian water rights holders were not required to avoid unreasonable use that adversely affected appropriators. Herminghaus v. So. Cal. Edison Co., (“Herminghaus”) (1926) 200 Cal. 81. Herminghaus essentially held that appropriative water right holders could not compel riparian water right holders to use water reasonably. In 1928, the voters amended the California Constitution to overrule Herminghaus through Article X, section 2, which prohibits all users of water—appropriative, riparian, or otherwise—from wasting or unreasonably using water. Peabody v. City of Vallejo, (1935) 2 Cal.2d 351, 367.

Article X, section 2 provides:

“…[T]he 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.”

After voters passed Article X, section 2, all water resources of the state must be put to reasonable and beneficial use and not wasted. Water Code §100; Light, supra, 226 Ca1.App.4th at 1479. “[N]o water rights are inviolable; all water rights are subject to governmental regulation.” Light, supra¸ 226 Cal.App.4th at 1487 (citation omitted). The right to water or the use or flow of water from any natural stream or water course is limited to such water as shall reasonably be required for the beneficial use to be served. Id. at 1479. A water use must be both beneficial and reasonable. Article X, §2; Central Delta Water Agency v. State Water Resources Control Board, (“Central Delta”) (2004) 124 Cal.App.4th 245, 259, 263-64 (State Board must meet detailed statutory and regulatory requirements to ensure beneficial use in issuing permits to appropriate water). This beneficial and reasonable use doctrine is the principle governing all uses of water resources in California. Joslin v. Mann Municipal Water Dist. (“Joslin”) (1967) 67 Ca1.2d 132, 137-38.

California courts have never defined what is a reasonable use of water, but they have made findings about unreasonable use. Light, supra, 226 Cal.App.4th at 1479-80 (use of water for the sole purpose of flooding land to kill gophers and squirrels is unreasonable, as is flooding for the purpose of depositing sand and gravel in flooded land). In determining whether a water diversion is unreasonable, the relevant factors include the impacts of the diversion on recreation, fish, and habitat. Environmental Defense Fund, Inc. v. East Bay Mun. Utility Dist., (1980) 26 Ca1.3d 183, 191, 200.

The determination of reasonable use is made on a case-by-case basis, and changes over time. In re Waters of Long Valley Creek Stream System, (1979) 25 Ca1.3d 339, 354; Light, supra, 226 Ca1.App.4th at 1479 (same). “What may be a reasonable beneficial use, where water is present in excess of all needs, would not be a reasonable beneficial use in an area of great scarcity and great need. What is a beneficial use at one time may, because of changed conditions, become a waste of water at a later time.” Tulare Irrigation Dist. v. Lindsay-Strathmore Irrigation District, (“Tulare”) (1935) 3 Ca1.2d 489, 567. Reasonable and beneficial water use “cannot be resolved in vacuo isolated from statewide considerations of transcendent importance. Paramount among these [is] the ever increasing need for the conservation of water in this state....” Joslin, supra, 67 Ca1.2d at 140.

The State Board has concluded that a reasonable use analysis requires an examination and evaluation of the ascertainable facts concerning water usage in view of the increasing need for water conservation within California. Although each case must be evaluated on its own merits, prior court and State Board decisions and several statutes provide guidance in evaluating water usage. In the Matter of Alleged Waste and Unreasonable Use of Water by Imperial Irrigation Dist., (June 21, 1984) State Water Resources Control Bd. Decision 1600 (“State Board Imperial Decision”), p.23. The State Board has listed seven factors for considering whether a use is wasteful or unreasonable: (1) other potential beneficial uses for conserved water; (2) whether the excess water now serves a reasonable and beneficial purpose; (3) the probable benefits of water savings; (4) the amount of water reasonably required for current use; (5) the amount and reasonableness of the cost of saving water; (6) whether the required methods of saving water are conventional and reasonable rather than extraordinary; and (7) the availability of a physical plan or solution. Id., pp. 24-29.

2. Public Trust Doctrine

In addition to reasonable use, water rights in California are limited by the public trust doctrine. Santa Barbara Channelkeeper v. City of San Buenaventura, (2018) 19 Cal.App.5th 1176, 1185-86. The doctrine’s origin is in Roman law, and English common law was applied in California to cases involving public rights to navigation, commerce, and fishing on navigable waters. Id. In 1983, the California Supreme Court held that the doctrine also protects navigable waters, such as Mono Lake, from harm cause by diversion of non-navigable tributaries. National Audubon Society v. Superior Court, (“Audubon”) (1983) 33 Cal.3d 419, 437. The State has a broad duty to protect the people’s common heritage of streams, lakes, marshlands, and tidelands. Id. As a consequence, parties acquiring rights in water flowing in a stream generally hold those rights subject to the public trust and can assert no vested right to use the water in a manner harmful to the trust. Id; Santa Barbara Channelkeeper v. City of San Buenaventura, supra, 19 Cal.App.5th at 1185-86.

3. The Clean Water Act

The federal Clean Water Act was enacted in 1972 to protect the nation’s water quality. It does so by prohibiting the discharge of pollutants to waters of the United States without a NPDES permit. 33 U.S.C. §§ 1311, 1342; Building Industry Association. of San Diego County v. State Water Resources Control Board, (2004) 124 Cal.App.4th 866, 872-73. NPDES permits protect water quality by imposing various requirements on the discharger, including limiting the concentration of specific pollutants and requiring monitoring and self-reporting. Waterkeepers Northern California v. State Water Resources Control Board, (2002) 102 Cal.App.4th 1448, 1452.

The goal of the NPDES permitting system is to ensure that the “receiving water” to which discharges are made will remain clean enough to support the beneficial uses designated for that water, such as drinking, swimming, fishing, or providing wildlife habitat. Communities for a Better Environment v. State Water Resources Control Board, (2003) 109 Cal.App.4th 1089, 1092-1093. NPDES permits must be renewed every five years. 33 U.S.C. §l342(b)(l)(B).

States meeting federal requirements may be authorized by the federal Environmental Protection Agency (“EPA”) to administer state permit programs in lieu of the NPDES permit program. 33 U.S.C. § 1342(b). After the Clean Water Act’s enactment in 1972, California took steps to obtain approval of its state permit program. Water Code §§ 13370-89; County of Los Angeles v. California State Water Resources Control Board, (“County of Los Angeles”) (2006) 143 Cal.App.4th 985, 1004-07. The steps included exempting NPDES permitting decisions from CEQA because the Clean Water Act exempts the EPA from complying with the National Environmental Protection Act (“NEPA”), which is the federal equivalent to CEQA. Water Code §13389; 33 U.S.C. §1371(c). In 1973, California obtained authority from the EPA to administer its permit program in lieu of the NPDES permitting program. 54 Fed. Reg. 40664-01 (Oct. 3, 1989).

4. California’s Water Quality Act

The Porter-Cologne Water Quality Control Act (“Water Quality Act”) is California’s means of compliance with the NPDES permitting program. The Water Quality Act protects the quality of the waters of California, including both surface water and groundwater, through a permitting process that controls the discharge of “waste.” Water Code §13000.[2] The term “waste” includes sewage and all other waste substances associated with human habitation or from any producing, manufacturing, or processing operation. Water Code §13050(d). State program requirements shall be construed to ensure consistency with the federal Water Pollution Control Act. Water Code §13372.

The State Board and nine regional water boards are the “principal state agencies with primary responsibility for the coordination and control of water quality.” Water Code §13001; California Sportfishing Protection Alliance v. State Water Resources Control Bd., (2008) 160 Cal.App.4th 1625, 1638. The Regional Board has primary responsibility for issuing water quality permits in the Los Angeles region. Waterkeepers Northern California v. State Water Resources Control Board, supra, 102 Cal.App.4th at 1452; Natural Resources Defense Council, Inc. v. City of Los Angeles, (2013) 725 F.3d 1194, 1198-99; Water Code §§ 13200(d), 13263, 13377.

a. The Regional Boards

The State Board establishes statewide policy for water quality control (Water Code §13140) and the regional boards “formulate and adopt water quality control plans for all areas within [a] region.” Water Code §13240; City of Burbank v. State Water Resource Control Board, (“City of Burbank”) (2005) 35 Cal.4th 613, 619. The regional boards’ water quality plans (“basin plans”) must address water quality objectives and the beneficial uses to be protected and must establish a program of implementation. Water Code §13050(j). Basin plans must be consistent with “state policy for water quality control.” Water Code §13240. City of Burbank, supra, 35 Cal.4th at 619.

Regional boards also issue WDRs (permits) for the discharge of wastewater:

“(a) The regional board, after any necessary hearing, shall prescribe requirements as to the nature of any proposed discharge, existing discharge, or material change in an existing discharge, except discharges into a community sewer system, with relation to the conditions existing in the disposal area or receiving waters upon, or into which, the discharge is made or proposed. The requirements 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, and the provisions of Section 13241.

(b) A regional board, in prescribing requirements, need not authorize the utilization of the full waste assimilation capacities of the receiving waters.

(c) The requirements may contain a time schedule, subject to revision in the discretion of the board.

(d) The regional board may prescribe requirements although no discharge report has been filed.

(e) Upon application by any affected person, or on its own motion, the regional board may review and revise requirements. All requirements shall be reviewed periodically.

(f) The regional board shall notify in writing the person making or proposing the discharge or the change therein of the discharge requirements to be met. After receipt of the notice, the person so notified shall provide adequate means to meet the requirements.

(g) No discharge of waste into the waters of the state, whether or not the discharge is made pursuant to waste discharge requirements, shall create a vested right to continue the discharge. All discharges of waste into waters of the state are privileges, not rights.

(h) The regional board may incorporate the requirements prescribed pursuant to this section into a master recycling permit for either a supplier or distributor, or both, of recycled water….” Water Code §13263.

A regional board’s WDR is equivalent to, and serve as, a NPDES permit when issued to implement both the Water Quality Act and the federal Clean Water Act. Water Code §§ 13374, 13377. Permits issued by a regional board must prevent nuisance, which includes anything that is injurious to public health. Water Code §§ 13263(a), 13050(m). Regional boards may require testing to assess the safety of the discharge. Water Code §13267.

In addition to an individual WDR permit, the legislature empowered the regional boards and the State Boards to adopt “general waste discharge requirements (“General WDR”) for a category of discharges” under certain circumstances. Water Code §13263(i). General WDRs are region-wide or state-wide generic permit terms that dischargers can elect to use for permitting their discharges rather than initiating an individual WDR permitting process. Water Code §13263(i). When adopting a General WDR, the pertinent board must make findings regarding the beneficial uses to be protected, the water quality objectives reasonably required for that purpose, other waste discharges, the need to prevent nuisance, past, present, and probable future beneficial uses, environmental characteristics, water quality conditions that could reasonably be achieved through the coordinated control of all factors which affect water quality in the area, economic considerations, the need for developing housing, and the need to develop and use recycled water. Water Code §§ 13263(a), 13241.

Waste treatment plant owners have the exclusive right to the treated wastewater created by their plant. Water Code §1210. No permit shall be issued to any person other than the wastewater producer for the appropriation of treated wastewater that has been introduced into the watercourse with the stated intention of maintaining or enhancing fishery, wildlife, recreational, or other instream beneficial use. Water Code §1212.

Pursuant to Water Code section 1211 (“section 1211”), a waste treatment plant must apply for, and a regional board may approve, a request to reduce the level of existing wastewater discharge:

“(a) Prior 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 board for that change….(b) Subdivision (a) 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.” Water Code §1211.

A party aggrieved by a final decision or order of a regional board may obtain review of the decision in superior court by filing a petition for writ of mandate. Water Code §13330(b). The court shall exercise its independent judgment on the evidence in any case involving the judicial review of a decision or order of the state board or regional board. Water Code §13330(e).

b. The State Board

The State Board was created in 1913 as the State Water Commission and initially was limited to determining if unappropriated water was available and, if so, issuing a permit for its use. Light, supra, 226 Cal.App.4th at 1481. The enactment of Article X, section 2 led to an expansion of the State Board’s powers. Id. The State Board’s authority has steadily evolved “from the narrow role of deciding priorities between competing appropriators to the charge of comprehensive planning and allocation of waters.” Id. (citation omitted).

California's policy now is to combine government functions and provide for the State Board’s coordinated consideration of water rights and water quality. Water Code §174(b). The State Board has broad authority to control and condition water use, ensuring that it is used consistent with the public interest. Id. (citation omitted). The State Board is responsible to take all appropriate actions before executive, legislative, or judicial agencies to carry out the constitutional and statutory mandates to prevent the waste and unreasonable use of California's waters. Water Code §§ 275, 1050. The State Board also is responsible for administering California's public trust resources. See Water Code §1120.

The State Board "exercise[s] the adjudicatory and regulatory functions of the state in the field of water resources." Water Code §174(a). The State Board functions to provide for the orderly and efficient administration of water resources and has the authority to take all appropriate actions to prevent waste, unreasonable use, unreasonable method of use, or unreasonable method of diversion of water in the state. California Farm Bureau Federation v. State Water Resources Control Bd., (2011) 51 Cal.4th 421, 429. See Water Code §§ 1825 (cease and desist orders), 1052, 1845 (penalties or injunctive relief), 1241 (forfeiture), 1675 (revocation); Light, supra, 226 Ca1.App.4th at 1481; Imperial Irrigation Dist. v. State Water Resources Control Bd. (“Imperial Irrigation I”) (1986) 186 Ca1.App.3d 1160 (administrative adjudication).

“The Board’s authority to prevent unreasonable or wasteful use of water extends to all users, regardless of the basis under which the users water rights are held.Light, supra, 226 Cal.App.4th at 1482. Hence, the State Board has the authority to enact a regulation governing the reasonable use of water to protect young salmon from abrupt declines in the Russian River caused by appropriators using the water in cold months to spray vineyard and orchards to prevent damage, even though the regulation affected riparian users and pre-1914 appropriators not required to have permits. Id. at 1487.

An aggrieved person may petition the State Board to review any action or failure to act by a regional board. Water Code §13320. The State Board has the authority, but not a duty, to review decisions of regional boards. Water Code §13320(a). The State Board’s decision not to review a regional board’s action is unreviewable. People v. Barry, (1987) 194 Cal.App.3d 158, 167.

4. Recycled Water

For more than 100 years California, especially Central and Southern California, has lacked sufficient local water supplies to the meet the state's water requirements. The primary method for addressing this problem was to import water from places of abundance to places where it is lacking. In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings, (2008) 43 Ca1.4th 1143, 1153-55 (discussing California’s importation of water from the Owen's Valley, the Colorado River, and the Sacramento-San Joaquin Delta). Importing water, however, negatively impacted the locales where the water originated. The public has an interest, and the legislature has directed the state to undertake all possible steps to encourage, the development of water "to supplement existing surface and underground water supplies and to assist in meeting the future water requirements of the state..." and "to minimize the impacts of growing demand for new water on sensitive natural water bodies." Water Code §§ 13510, 13512, 13529(c).

One means of alleviating California’s water supply problem is to recycle it.[3] Rather than discharging effluent to the ocean or rivers as waste, wastewater treatment plants could treat it to become recycled water and then redirect it for beneficial use.

In enacting the Water Reclamation Law in 1970, the Legislature declared that the people of the state have a “primary interest” in the development of water recycling facilities and stated its intention that the state “undertake all possible steps” to do so. Water Code §§ 13510, 13512; 13560; 23 CCR §2920. The Legislature found that the state has an interest in the development of facilities to recycle water “to supplement existing water supplies” and “to minimize the impacts of growing demand for new water on sensitive natural water bodies.” Water Code §13529(c). The Legislature intended that the state "undertake all possible steps to encourage development of water recycling facilities ...." Water Code §13512 (emphasis added). The development of such facilities "for domestic agriculture, industrial, recreational, and fish and wildlife purposes, will contribute to the peace, health, safety and welfare of the people of the state." Water Code §13511.

The Legislature further found that the use of recycled water may help California meet “a substantial portion of the future water requirements of this state.” Water Code §§ 13511, 13529(d). As the California Supreme Court stated: “[t]he Legislature enacted the Water Reclamation Law to encourage wastewater reclamation as a means of supplementing existing water supplies.” Environmental Defense Fund, Inc. v. East Bay Mun. Utility Dist., (“EDF I”) (1977) 20 Ca1.3d 327, 342. In 1997, the Legislature set a goal of recycling one million acre-feet of water (“afy”) [4] by 2010. Water Code §13529(e). In 2013, the State Board expanded that goal to increase the use of recycled water over 2002 levels by at least one million afy by 2020 and by at least two million afy by 2030.[5]

In 2009, the Legislature declared that it is waste and unreasonable use of water to use potable water when recycled water of adequate quality is available. See Water Code §13550. The Legislature also found that specific uses of potable water are a waste or an unreasonable use if suitable recycled water is available. Water Code §§ 13552.2 (residential landscaping), 13552.6 (floor trap priming, cooling towers, and air conditioning), 13553 (toilet and urinal flushing).

The Legislature created a permitting process to ensure that recycled water facilities do not adversely affect water quality. Water Code §13510 et seq. Discharges of recycled water without a permit are prohibited. Water Code §13529.2. As necessary to protect the public health, safety, or welfare, a regional board or the State Board may issue a permit known as “water reclamation requirements" (WRR) to an entity that proposes to recycle water in order to protect "the public health, safety, or welfare". Water Code §§ 13523, 13528.5(a). Recycled water may not be used for potable uses, direct (retail distribution systems) or indirect (groundwater recharge), and the permit functions to allow non-potable uses of recycled water such as landscape and agricultural irrigation and certain industrial uses such as cooling towers.

As the State Board’s counsel argued at the August 8, 2019 demurrer hearing, there are no California statutes creating a duty to recycle water; the pertinent statutes only encourage water recycling facilities and govern how recycled water is used.

D. The Court’s Demurrer Ruling for the State Board’s Duty

The following is the pertinent portion of the court’s ruling on the State Board’s demurrer, edited for case and footnote citations and block quotations.

a. Article X, Section 2 and Section 100

Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretation. AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701. The interpretation of a constitutional provision is the same as a statute. In construing a statute, the court first looks to its language, attempting to give effect to plain meaning and seeking to avoid making any language mere surplusage. Brown v. Kelly Broadcasting Co., (1989) 48 Cal 3d 711, 724. Significance, if possible, is attributed to every word, phrase, and sentence. Orange County Employees Assn. v. County of Orange, (1991) 234 Cal.App.3d 833, 841. The statute must be given a reasonable and commonsense interpretation consistent with the purpose and intent of the lawmakers, practical rather than technical in nature, and which will result in application of wise policy rather than mischief or absurdity. To that end, the court must consider, in addition to the statute’s plain meaning, the object it seeks to accomplish, the evils to be remedied, and public policy. Lungren v. Deukmejian, (1988) 45 Cal.3d 727, 735. The statute must be interpreted to promote its general purpose, even if the literal meaning suggests a different reading. Id. at 735. (“[T]he ‘plain meaning’ rule does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose …. Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute”).

Waterkeeper argues that the State Board has a mandatory duty to analyze whether the discharge of wastewater in the permits is unreasonable or wasteful. Waterkeeper argues that the plain meaning of Article X, section 2’s use of the word “prevented” in the phrase “waste or unreasonable use or unreasonable method of use of water be prevented” shows the State Board’s mandatory duty. Waterkeeper argues that “prevented” is a verb, and as such connotes that action must be taken by someone to prevent waste. Opp. at 12.

This plain language argument does not aid Waterkeeper. The sentence is drafted in the passive voice and does not identify who, if anyone, is supposed to prevent waste and unreasonable use. Article X, section 2’s plain language does not show that the State Board, as opposed to some person or other public agency, is required to enforce that general statement of policy. See Resp. Reply at 7.

Waterkeeper also argues that Article X, section 2 is by its terms self-executing, and therefore the State Board’s duty clearly applies when issuing permits. Opp. at 12. Respondents correctly reply that the fact a constitutional provision is self-executing simply means that it can be enforced by third parties without the need for supporting legislation. Rice v. Howard, (1902) 136 Cal.432, 439-40. The existence of a self-executing constitutional provision does not necessarily impose a mandatory duty. Resp. Reply at 7.[6]

Respondents rely on Article X, section 2’s purpose to contend that it does not impose a clear and present mandatory duty for the State Board to review the reasonableness of discharges permitted by the Regional Board. They argue that, when appropriately construed, Article X section 2 was intended to accomplish the purpose of changing water rights law to ensure that riparian water right holders were subject to the same reasonable use doctrine as appropriative water right holders. Article X, section 2 prohibits water users from wasting water or using water unreasonably. The State Board enforces this prohibition on water users when it issues or review a water right permit pursuant to Division 2 of the Water Code. Central Delta, supra, 124 Cal.App.4th at 245; 23 CCR §§ 697, 698, 855 et seq. Dem. at 17-18.

Respondents note that Article X, section 2 says nothing about imposing a mandatory duty on the State Board to investigate or enforce each instance in which a member of the public alleges that a particular user is wasting or unreasonably using water. Article X, section 2 does not mention the State Board. Nor does it identify who, if anyone, should prevent the waste or unreasonable use of water. Since Article X, section 2 is not “clear” who should prevent waste and unreasonable use, it can hardly be said that it is clear the State Board has such a mandatory duty. Even if such a duty were clear, it is not “present” because there is no temporal element when the State Board is required to take action to prevent waste and unreasonable use. Resp. Reply at 17.

According to Respondents, Waterkeeper seeks to transform Article X, section 2 from a prohibition against water rights holders who are wasting water into a new mandatory duty for the State Board to investigate and prevent every instance of a water user’s alleged waste or unreasonable use of water. To do so, the court would have to read words into Article X, section 2 that are not present. This the court cannot do. See CCP §1858 (construction of statute should not add words that have been omitted). Respondents contend that their construction is supported by the fact that no case has held that the State Board has a mandatory duty to investigate and enforce its violation in the 90 years since Article X, section 2 was adopted. Dem. at 27.

Waterkeeper contends that Respondents’ position -- that Article X, section 2’s requirement is merely a discretionary enforcement tool that applies only when the State Board issues or reviews water rights permits --ignores the California Supreme Court decision in Audubon, supra, 33 Cal. 3d 419 at 443-44, that squarely imposed the constitutional duty on the State Board to ensure comprehensive planning and allocation of all water resources. Opp. at 11.

In Audubon, the plaintiffs filed suit to enjoin diversions of water from Mono Lake. 33 Cal.3d at 419. The Division of Water Resources, predecessor to the State Board (for convenience, referred to herein as State Board), had granted a permit to Los Angeles’ Department of Water and Power to appropriate virtually the entire flow of four of the five streams flowing into the lake. Id. at 424. Plaintiffs filed suit to enjoin the diversions on the theory that the shores, bed, and waters of Mono Lake are protected by the public trust doctrine. Id. at 425.

The California Supreme Court stated that the lawsuit concerned the relationship of California’s appropriative water rights system and the public trust doctrine, which extends to navigable lakes like Mono Lake. Id. at 425. The court noted that Article X, section 2 establishes state water policy, requiring that all uses of water, including public trust uses, conform to the standard of reasonable use. Id. at 443. The State Board’s function has evolved from the narrow role of deciding priorities between water appropriators to the comprehensive planning and allocation of waters, and it is required by statute to consider interests protected by the public trust in undertaking planning and allocation of water resources. Id. at 444. The state retains supervisory control over its navigable waters and prevents any party from acquiring a vested right to appropriate water in a manner harmful to the interests protected by the public trust. Id. at 445. The court held that the public trust doctrine and the appropriative water rights system are parts of an integrated system of water law, and the plaintiffs could rely on the public trust doctrine to seek the State Board’s reconsideration of the diversion of waters from Mono Lake. Id. at 452. In so doing, the plaintiffs were not required to argue that the water diversions were not beneficial under the appropriative water rights system. Id.

Respondents argue that Audubon is inapplicable because it merely held that the State Board had authority to reopen water right permits issued to Los Angeles in the 1940’s to divert all or nearly all of the tributaries feeding Mono Lake in order to assess whether the diversions were harming public trust resources in Mono Lake. Id. at 440. Respondents contend that Audubon’s discussion of the State Board’s obligations and duties must be read in the context of the court’s discussion of the State Board’s authority with respect to water right permits. Resp. Reply at 8. Respondents further argue that the three cases cited by Waterkeeper as “consistently following” its suggested interpretation of Audubon -- Elmore, supra, 159 Cal.App.3d at 185, Imperial Irrigation v. State Water Resources Control Board, (“Imperial Irrigation II”) (1986) 225 Cal.App.3d 548, and United States v. State Water Resources Control Board, (“United States”) (1986) 182 Cal. App. 3d 82 – do not actually do so. Resp. Reply at 8.

Elmore’s petitioner was a farmer who alleged that the Imperial Irrigation District, a large water right holder, was wasting water by allowing fresh water to drain into the Salton Sea, which caused the Salton Sea to rise and flood his property. 159 Cal.App.3d at 193. The court agreed that the district “had a clear, mandatory duty to avoid wasting water ….” Id. at 193. Respondents correctly note that the fact that a water right holder has a mandatory duty to avoid wasting water provides no support for Waterkeeper’s argument that the State Board has a mandatory duty to prevent the POTWs from wasting or not reusing wastewater. Resp. Reply at 8-9.

Imperial Irrigation II involved the district’s same alleged wasteful water practices as in Elmore. The State Board found that the district was wasting water and issued an administrative order requiring the district to take water conservation measures. 225 Cal.App.3d at 552. The court upheld the State Board’s authority to investigate and address instances of waste and unreasonable use. Id. at 559-61. Respondents correctly note that Imperial Irrigation II only stands for the legal proposition that the State Board has authority to address waste and unreasonable use and does not address its duty (mandatory or otherwise) to do so. Resp. Reply at 9.

United States concerned the State Board’s adoption of a water quality control plan for the Sacramento-San Joaquin Delta, and its revision of water right permits issued to the United States (for the Central Valley Project) and the Department of Water Resources (for the State Water Project) to meet the water quality requirements of the newly adopted plan. In pertinent part, the court stated that, when the State Board adopts a water quality control plan that establishes water quality standards for a body of water, it must set such standards at a level that will allow that water to be used for the beneficial uses (such as swimming, fishing, or municipal use) designated in the water quality control plan. Id. at 110. Respondents note that United States has nothing to do with the State Board’s duty under Article X, section 2 to investigate instances of waste or unreasonable use. Resp. Reply at 9.

Respondents also distinguish every case cited by Waterkeeper, with one exception, as a claim that a water user was wastefully or unreasonably using water or violating the public trust, and/or the State Board’s authority (but not duty) to prevent a water user from doing do. See Audubon, supra, 33 Cal.3d 419; Imperial Irrigation II, supra, 225 Cal.App.3d at 548; Light, supra, 226 Cal.App.4th at 1463 (State Board has power to issue regulations controlling how water may be used by grape growers for frost control); People ex rel. State Water Resources Control Bd. v. Forni (1976) 54 Cal.App.3d 743 (State Board has authority to issue policy statements as to what constitutes an unreasonable use). Resp. Reply at 10.

The exception is Central Delta, supra, 124 Cal.App.4th at 245, in which the court did address the State Board’s obligations. The appellants challenged the decision of the State Board to issue permits and certify an environmental impact report (“EIR”) for the appropriation of water from the San Francisco Bay/Sacramento–San Joaquin Delta Estuary (“Delta”) into reservoirs to be constructed on two islands in the Delta for later re-diversion and sale to potential purchasers in amounts unknown. Id. at 252. The court concluded that the Water Code requires that a permit application to impound water in a reservoir must state -- and the State Board must determine -- that an actual, intended beneficial use, in estimated amounts, will be made of the impounded waters. Id. at 262-63. A general statement of potential beneficial use is insufficient, and the State Board does not satisfy its statutory obligations by conditioning a permit on a particular use and in amounts to be specified at some later date. Id. at 261-63.

Respondents correctly distinguish Central Delta as a case addressing the State Board’s duties for a water rights permit issued pursuant to Divisions 1 and 2 of the Water Code, not a wastewater discharge permit issued by a regional board pursuant to Division 7 of the Water Code.[7] Central Delta did not turn on Article X, section 2, and was specific to the State Board’s statutory duties when issuing water right permits. See, e.g., Water Code §§ 25, 1250. Respondents conclude that Central Delta case is irrelevant to determine the scope of the Regional Board’s duties under Article X, section 2. Resp. Reply at 10.

The court agrees with Respondents 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. Nonetheless, Waterkeeper’s interpretation of Article X, section 2 is correct. The plain language of Article X, section 2 creates a mandatory duty for all responsible agencies to prevent waste or unreasonable use of water. The courts have repeatedly held that both Article X, section 2 and section 100 create a “clear, mandatory duty to avoid wasting water, prevent flooding and provide drainage.” Elmore, supra, 159 Cal.App.3d at 193; see also City of Barstow v. Mojave Water Agency, (2000) 23 Cal.4th 1224, 1236 (“[A]rticle X, section 2 of the California Constitution… mandates that water be put to reasonable and beneficial use.”); Imperial Irrigation I, supra, 186 Cal.App.3d at 1170-71 (citing Elmore). A public agency can be compelled to act to prevent a waste of water pursuant to this constitutional duty. See Elmore, supra, 159 Cal.App.3d at 197-98 (irrigation district had a mandatory duty to prevent water from flooded agricultural land to needlessly drain into a saline sea, preventing its use for a beneficial purpose).

Respondents’ distinction of the pertinent case law as involving water rights or the State Board’s water rights duties is of little moment for two reasons. First, the State Board most certainly is a responsible agency under Article X, section 2 with a duty to prevent waste or unreasonable use. Second, although not on point, the case law provides guidance about the existence of the State Board’s duty under Article X, section 2. Contrary to Respondents’ argument, the California Supreme Court in Audubon did not merely hold that Article X, section 2 overturned the holding of Herminghouse, supra, 200 Cal. At 81, that riparian right holders (as opposed to appropriative rights holders) could use water unlimited by any reasonable use or waste requirements. The Audubon court also explained that the State Board’s role in implementing Article X, section 2 has steadily evolved from the narrow role of deciding priorities between competing appropriators to the charge of comprehensive planning and allocation of waters. Id. at 444. The State Board’s role of planning and allocation of waters must include wastewater. Waterkeeper correctly concludes that Audubon’s holding that the constitutional requirement to prevent waste and unreasonable use is mandatory is consistent with the plain language of Article X, section 2.

The California Supreme Court also has confirmed that Article X, section 2 applies to wastewater reclamation. EDF I, supra, 20 Cal.3d at 327. Opp. at 14. In EDF I, the plaintiffs brought an action challenging the East Bay Municipal Utility District’s decision not to develop water reclamation facilities and to contract with the United States Bureau of Reclamation for water from a federal project. The plaintiffs alleged that the district’s decision not to develop reclamation facilities violated Article X, section 2 and Water Code sections 100 and 13500. 20 Cal.3d at 332. The plaintiffs sought an order to compel the district to undertake a reclamation program that “is required by law.” Id. The court noted that the Legislature enacted the Water Reclamation Law (Water Code §§ 13510-12) as a means of supplementing water supplies. Id. at 342-43. See Water Code §§ 13522.5-26. These statutes direct the water boards and Department of Health (now DPH) to regulate reclamation of wastewater, promulgate reclamation requirements, and ensure enforcement of said requirements. Id. Consequently, the Legislature intended to vest regulation of wastewater reclamation with the water boards and DPH. Id. at 343.

The EDF I court held that the plaintiffs’ contention was a matter properly within the water boards’ and DPH’s responsibility to regulate wastewater reclamation. Id. at 343. The State Board was in fact exercising these powers by requiring a public utility to study water reclamation and by developing plans for wastewater reclamation throughout the state. Ibid. The question whether economic resources should be devoted to wastewater reclamation or the development of other water supplies is a legislative one, and these issues are far more complex and different in kind than a judicial adjudication of water rights between two users. Id. at 344. As a result, plaintiffs’ issue must be addressed in the first instance by the State Board, which has the expertise and is part of the regulatory scheme. Id. at 344.

Respondents further argue that the State Board does not have a mandatory duty under section 100 to determine whether the POTWs’ discharge is a waste or unreasonable use of water. Dem. at 19.

Section 100 largely mirrors the applicable language in Article X, section 2, providing in pertinent part:

“[T]the general welfare requires that… the waste or unreasonable use of water be prevented….The right to water or to the use or flow of water in or from any natural stream or watercourse in this State is and shall be limited to such water as shall reasonably be required for the beneficial use to be served, and such right does not extend to the waste or unreasonable use of water.”

For the same reasons why Article X, section 2 requires the State Board to prevent waste or unreasonable use of wastewater, section 100 also impose this requirement. Thus, the State Board has a duty to prevent waste or unreasonable use of wastewater under Article X, section 2 and section 100. This duty is supplemented by the State Board’s statutory duty under section 275. See post.

b. Section 275

Section 275 provides:

“The [Department of Water Resources] and the [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.”

Respondents note that section 275 states that the State Board “shall take all appropriate proceedings …. to prevent waste, unreasonable use….” (emphasis added). Hence, section 275 provides the State Board with discretion to determine which proceedings, if any, are appropriate to prevent waste or unreasonable use. Respondents acknowledges that the Water Code defines “shall” as “mandatory.” Water Code §15. However, the word “shall” must be modified by the word “appropriate”. See R & P Growers Association. v. Agricultural Labor Relations Board, (“R&P Growers”) (1985) 168 Cal.App.3d 667, 679. Section 275 does not require the State Board to take all actions to prevent waste and unreasonable use; it only directs the State Board to take appropriate actions. Whether or not an action is appropriate is inherently a discretionary decision vested in the State Board. Respondents conclude that the only sensible interpretation of section 275 gives the State Board the authority or power to take action and prevent waste and unreasonable use, but not the obligation to do so. Dem. at 28.

Respondents add that to hold otherwise would undermine the State Board’s prosecutorial discretion to decide which alleged waste and unreasonable uses of water to investigate and prosecute. Members of the public or the court cannot dictate where a governmental agency with should direct its prosecutorial efforts, even when a statute says a prosecutor “shall” pursue an investigation and prosecute specified violations. Gananian v. Wagstaffe, (2011) 199 Cal.App.4th 1532, 1540-44. The deference courts show to criminal prosecutors applies equally to administrative agencies’ decisions to not pursue prosecution in particular circumstances. Heckler v. Chaney, (1985) 470 U.S. 821, 832. Dem. at 28-29; Resp. Reply at 19.

Respondents argue that no published case interprets section 275 to impose a mandatory duty on the State Board. Rather, every case discussing section 275 speaks in terms of the State Board’s “authority” or “power” to do so. See California Farm Bureau Federation v. State Water Resources Control Board, (2011) 51 Cal.4th 421, 429 (Section 275 gives the State Board the “authority to prevent waste or unreasonable use of water ...”); Imperial Irrigation I, supra, l86 Cal.App.3d at 1170 (section 275 is one of the State Board’s powers); Light, supra, 226 Cal.App.4th at 1484-85 (State Board has authority to enact regulations to prevent unreasonable use or methods of diversion). Dem. at 28.

Respondents note that, in an analogous circumstance, a federal court has held that the Clean Water Act gives the EPA Administrator the discretion to refuse to investigate despite the fact that the statute provides that the EPA Administrator “shall bring a civil action” against a person in violation of a permit condition. 33 U.S.C. § 1319(a)(3). Dem. at 29. In Sierra Club v. Whitman, (9th Cir. 2001) 268 F.3d 898, plaintiffs argued that the statute mandated that EPA pursue enforcement actions against a permittee when there was incontrovertible evidence of a permit violation. Id. at pp. 900-01. The Ninth Circuit disagreed, finding that the EPA had the discretion not to take enforcement action, notwithstanding the fact that the statute provides that EPA “shall bring a civil action ....” Id. at 901. The court recognized that there is a longstanding presumption that an agency’s refusal to investigate or enforce is discretionary unless Congress has indicated otherwise. Id. at 902. “Particularly when used in a statute that prospectively affects government action, ‘shall’ is sometimes the equivalent of ‘may.’” Id. at 904.

The court agrees that section 275 merely confirms the State Board’s discretionary authority to prevent waste and unreasonable use and does not by itself create a mandatory duty. The use of the word “shall” in a statute does not necessarily create a mandatory duty. Hagopian v. State, (2014) 223 Cal.App.4th 349, 366. Additionally, the qualifying language of the statute -- the State Board “shall take all appropriate proceedings or actions” (emphasis added) – provides the State Board with discretion to determine whether a proceeding or action is appropriate. R&P Growers, supra, 168 Cal.App.3d at 680 (use of the word “appropriate,” even when paired with “shall,” implies discretion).

Section 275 gives the State Board the discretion to institute all appropriate proceedings to prevent waste and unreasonable use, and it does not require the State Board to take a particular action or initiate a particular proceeding. The word “appropriate” gives the State Board discretion to choose when and where to conduct “proceedings or actions” in executing its duty.

This discretion is not unlimited, however. As Waterkeeper argues, section 275 is not merely a general state policy without a mandate. Section 275 provides that the 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.” §275 (emphasis added). The words “shall take all” and “to prevent” unambiguously impose a mandatory duty to take action where it is appropriate to do so. Guzman v. County of Monterey, (2009) 46 Cal. 4th 887, 898 (language, function, and purpose of statute must be examined to determine if it creates mandatory duty).[8]

In sum, section 275 reinforces the State Board’s mandatory, constitutional and statutory duty to take action in appropriate proceedings to prevent waste or unreasonable use of water. This duty is generalized in nature, and the State Board has discretion to pick and choose which unreasonable use or waste of water to investigate and enforce.

c. Nature of the State Board’s Duty

The State Board has a constitutional duty under Article X, section 2, and a statutory duty under section 100, to prevent waste and unreasonable use of water resources, including wastewater. Section 275 underscores this duty by requiring the State Board to take appropriate action to prevent waste and unreasonable use. Given its mandatory duty, does the State Board have a duty to prevent waste or unreasonable use in this case?

All water resources of the state must be put to reasonable beneficial use and not wasted. Art. X, §2; §100. This reasonable use doctrine is the principle governing all uses of water resources in California. Joslin, supra, 67 Ca1.2d at 137-38. A water use must be both beneficial and reasonable. Art. X, §2; Joslin, supra, 67 Ca1.2d at 143. The determination of what constitutes an unreasonable use of water is determined on a case-by-case basis, and changes over time. Tulare, supra, 3 Ca1.2d at 567 ("What may be a reasonable beneficial use, where water is present in excess of all needs, would not be a reasonable beneficial use in an area of great scarcity and great need. What is a beneficial use at one time may, because of changed conditions, become a waste of water at a later time.”). Reasonable water use "cannot be resolved in vacuo isolated from statewide considerations of transcendent importance. Paramount among these [is] the ever increasing need for the conservation of water in this state...." Joslin, supra, 67 Ca1.2d at 140.

There is no question that the State Board has the authority to issue a general regulation governing the reasonable use of the POTWs’ wastewater. The appellate decision in Light, supra, 226 Cal.App.4th at 1463, proves as much. There, the court upheld the State Board’s adoption of a general regulation to protect young salmon from abrupt decline in the Russian River levels when water was drained from the river’s stream system and sprayed on vineyards and orchards to prevent frost damage. Id. at 1472. The court reasoned that a person’s or entity’s right to use water from any natural stream or water course is limited to that reasonably required for the beneficial use to be served. Id. at 1479. Under the public trust doctrine, the State Board also has an affirmative duty to take the public trust into account in the planning and allocation of water resources and to protect the public trust where feasible. Id. at 1480-81. As a result, the court held that State Board has broad authority to control and condition water use, insuring use consistent with the public interest, and a power equivalent to the Legislature to enact regulations governing reasonable use of water. Id. at 1484-85.

Although Light concerned the State Board’s regulation of reasonable use of water from a natural stream or water course, it provides authority for the State Board to control wastewater. “The Board’s authority to prevent unreasonable or wasteful use of water extends to all users, regardless of the basis under which the users water rights are held.Id. at 1482. Respondents acknowledge that the State Board has the power to prevent the unreasonable use of wastewater and argue that it does not have a mandatory duty to prevent the POTWs’ waste or unreasonable use of wastewater in this case. Instead, the State Board has discretion to decide when to investigate whether a water right holder is alleged to have violated Article X, section 2, and ultimately to prosecute that person/entity. See Heckler v. Chaney, (1985) 470 U.S. 821, 832. When the State Board exercises its discretion to take action, it can enforce violations of Article X, section 2 administratively (e.g., 23 CCR §§ 855-860, 4000-07; Imperial Irrigation I, supra, 186 Cal.App.3d at 1160), or judicially through the Attorney General. See, e.g., People ex rel. State Water Resources Control Bd. v. Forni, (1976) 54 Cal.App.3d 743. But the State Board’s exercise of prosecutorial discretion cannot be compelled. See West v. State of California, (1986) 181 Cal.App.3d 753, 764-65 (statute did not create mandatory duty to hold hearing for revocation of contractor's license upon receipt of consumer complaint; licensing board had discretion to try to get contractor to resolve complaint before initiating disciplinary proceeding). Respondents contend that the State Board’s discretion includes the decision whether to investigate as a prelude to taking enforcement action against the POTWs. Dem. at 26-27.

Waterkeeper describes this argument as “audacious buck passing”. Waterkeeper notes that the California Constitution is the “paramount law of the state” (Krolikowski v. San Diego City Employees’ Retirement System, (2018) 24 Cal. App. 5th 537, 553), compliance with the Constitution is non-discretionary (Elmore, supra, 159 Cal. App. 3d at 193-97), and this obligation cannot be undermined by statute. Waterkeeper contends that, while the State Board’s decision not to review a decision or order of the regional board is admittedly discretionary and unreviewable, the State Board’s failure to comply with its constitutional and statutory mandate remains subject to judicial review. Johnson v. State Water Resources Control Bd., (2004) 123 Cal. App. 4th 1107, 1108, 1114. Opp. at 15. Similarly, Respondents’ contention that its duty under Article X, section 2, section 100, and section 275 is subject to prosecutorial discretion does not mean it has discretion to ignore its mandatory duty to prevent unreasonable use and is required to conduct a reasonable use analysis as a first step to inform its action. Opp. at 19. Waterkeeper contends that Respondents’ argument that its Article X, section 2 duties are “inherently discretionary”, has been rejected by courts considering similar issues. See Elmore, supra, 159 Cal. App. 3d at 193-197 (citing Article X, section 2 as imposing mandatory duties); see also Imperial Irrigation I, supra, 186 Cal. App. 3d at 1170-71. See Opp. at 18.

The permits at issue are not water rights permits; they are permits regulating the discharge of treated wastewater. However, this distinction has no bearing on the State Board’s duty to prevent waste and unreasonable use of the wastewater. The POTWs’ discharge of wastewater is a use of water. See ante, n.6. Resolution of the matter boils down to these questions: When and how does the State Board have a constitutional duty to step in and prevent waste or impose reasonable use requirements? Does the State Board have to do so every time a regional board issues a permit, even when the permit is a discharge permit affecting water quality and not water rights? Does the State Board have a duty to impose reasonable use requirements statewide for all discharges?

Respondents rely on a parade of horribles to answer these questions negatively. According to Respondents, it would be absurd for the State Board to have a mandatory duty to investigate and take enforcement action every time a member of the public makes a complaint that a water user is wasting water. Taking Waterkeeper’s argument to its logical end, the State Board would have a mandatory duty that could be enforced by any member of the public to investigate and prevent any alleged waste of water by any of the State’s 39 million residents, anywhere within its 104 million acres of land. The State Board would have a mandatory duty to investigate every complaint levied against neighbor alleged to be wasting water by leaving their sprinklers on overnight. Respondents argue that the court should consider the consequences that will flow from a particular statutory interpretation, and avoid those that lead to “absurd, arbitrary and anomalous results.” Com. on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 290; Tuolumne Jobs & Small Business Alliance v. Superior Court, (2014) 59 Cal.4th 1029, 1037 (statutes should be interpreted to avoid absurd results). Dem. at 27; Resp. Reply at 18.

There is no need to consider Respondents’ parade of horribles because the 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 State Board has the discretion to decide the manner in which it complies with its constitutional duty to prevent the waste and unreasonably use of water resources, and this discretion imposes no duty to address unreasonable use in the vast majority of circumstances. The State Board has discretion when and how it will enforce its constitutional duty, and the court may not compel the Board to exercise its discretion in a particular manner. AFSCME, supra, 126 Cal.App.4th at 261. But the State Board can be compelled to exercise its discretion.

Even when the State Board actually exercise of discretion, that exercise is not entirely unreviewable as underscored in the recent case of Collins v. Thurmond, (“Collins”) 41 Cal.App.5th 879. In Collins, a collection of parents, students, and others sought mandamus against local level defendants alleging equal protection violations against suspect class students in the school district polices regarding discretionary practices for expulsion. Id. at 915. The petitioners also alleged that the state-level agency defendants failure to meet their ministerial duty to monitor the local school district’s practices for violations of federal law. Ibid. In reversing the dismissal of the state-level agency claim of equal protection, the court first noted that, while a party may not invoke mandamus to force a public entity to exercise discretionary powers in a particular manner, mandamus is available to compel the agency to exercise those discretionary powers when it fails to do so. Id. at 914 (citation omitted).

The Collins court noted that the manner in which the state provides education to its citizens is highly discretionary and one not broadly amenable to a writ. Id. at 915. Federal courts impose a ministerial duty upon state-level agencies to monitor their school systems for compliance with federal equal protection requirements, and California’s acceptance of such oversight duties showed a clear ministerial duty to monitor compliance with federal law. Id. at 917. The manner in which the state-level agencies comply with that monitoring duty is discretionary in nature. Id. at 917. Accordingly, any claim arising from the way in which the state-level agencies implement such a duty must demonstrate an abuse of discretion. Id. at 918.

The question in Collins became to what degree must the petitioners allege the state-level agencies’ actions constitute an abuse of discretion? Ibid. The court answered this question first by acknowledging that a ministerial duty to monitor is a broad duty and therefore a petitioner must allege that the monitoring program as a whole is flawed such that its continued use is an abuse of discretion; a mere allegation against a single component of a monitoring program will not suffice. Id. at 364. However, the petitioners’ allegation that the state-level defendants abused their discretion by failing to implement any review of the monitoring program to ensure they were receiving the data necessary to meet their duty was a sufficient “holistic attack”. Ibid.

Obviously, Collins addressed a completely different subject – an equal protection monitoring duty – than the State Board’s ministerial duty to prevent unreasonable use or waste. But Collins reiterated a significant principle: a mandamus claim may be made for a highly discretionary duty where the agency has abused its discretion. Thus, the State Board can be compelled to exercise its discretion concerning the POTWs’ unreasonable use of wastewater, and mandamus will also lie for the exercise of that discretion when it can be exercised only in one way. Collins, supra¸ 39 Cal.App.5th at 361; Hurtado v. Superior Court, (1974) 11 Cal.3d 574, 579.

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 (sometimes “River”) and Santa Monica Bay every day. This level of wastewater discharge into the River, and eventually the Pacific Ocean, is so large that the State Board must do something to prevent waste. As Waterkeeper’s counsel argued at the September 3, 2019 hearing, the 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. Yet, the State Board has not even purported to exercise its discretion on the issue.

While the wording of Article X, section 2 applies to all unreasonable and wasteful uses of water, the court need not explore the outer boundaries of the State Board’s duty. The State Board’s constitutional duty, as underscored by sections 100 and 275, creates a mandatory duty to act in this case. As Waterkeeper explains, the State Board is not required to become the water police that investigates and prosecutes every running sprinkler in California. Opp. at 19. The Regional Board permitted a wastewater use when it approved the WDR permits. Waterkeeper is not seeking enforcement against a water right holder; it is challenging the State Board’s failure to exercise its discretion, triggered by the permits issuance, to consider the unreasonable use of wastewater. See Central Delta, supra, 124 Cal. App. 4th at 253, 259, 262, 264. Prosecutorial discretion cannot eliminate the State Board’s mandatory duty.

What is the nature of the action required? The State Board’s authority to prevent unreasonable or wasteful use of water extends to all users. Light, supra, 226 Cal.App.4th at 1482. The POTWs are water users. The State Board is the state agency in charge of the comprehensive planning and allocation of water (id. at 1481), and has a duty under Article X, section 2 and sections 275 and 100 to comprehensively plan to prevent waste and unreasonable use in the discharge of wastewater.[9]

Admittedly, no court has imposed this planning duty for the discharge permitted in the POTWs’ permits. However, the court is not plowing entirely new ground in concluding that the State Board’s duty. Audubon explained that the State Board’s function has evolved from the narrow role of deciding priorities between water appropriators to the comprehensive planning and allocation of waters, and it is required by statute to consider interests protected by the public trust in undertaking planning and allocation of water resources. 33 Cal.3d at 444. Imperial Irrigation II stated that water law is changing, and its evolution has passed beyond traditional concepts of vested rights. 225 Cal.App.3d at 553. Imperial Irrigation II also cited a law review commentator who stated that “California has regained for the pubic much of the power to prescribe water use practices, to limit waste, and to sanction water transfers.” Ibid. (citation omitted). “[E]verything is in the process of changing or becoming” in water law.” Ibid. (citation omitted). It is not a significant extension, therefore, to conclude that the State Board has a duty to act by planning to prevent the POTWs from unreasonable use of wastewater discharge.

The State Board has a variety of options to address the issue of waste and unreasonable use in the POTWs discharge. It may assess and make findings as Waterkeeper asks, impose a general regulation (Light), or take appropriate enforcement or administrative action. See California Farm Bureau Federation v. State Water Resources Control Bd., supra, 51 Cal.4th at 429; Water Code §1825 (cease and desist orders); Water Code §§ 1052, 1845 (penalties and injunctive relief); Water Code §1241 (forfeiture); Water Code §1675 (revocation). This is a matter for the State Board’s exercise of discretion, but the State Board can be compelled to take some action. See Los Angeles County Employees Assn. v. County of Los Angeles, supra, 33 Cal.App.3d at 8; Hurtado v. Superior Court, supra, 11 Cal.3d at 579. The State Board has not considered the factors surrounding the discharge, and there is no rational connection between its choice not to act and the purpose of Article X, section 2. See Ridgecrest Charter School v. Sierra Sands Unified, (“Ridgecrest”) (2005) 130 Cal.App.4th 986, 1003. The State Board must take some action in the exercise of its duty to regulate unreasonable use and waste, and to do nothing is an abuse of discretion.

Respondents argue that the State Board is not “doing nothing” with respect to water resources in the Los Angeles River. As Waterkeeper’s Petitions allege, the POTWs’ discharges in dry months comprise almost all of the Los Angeles’ River flow, and that discharged flow supports beneficial recreational uses (e.g., kayaking) and aquatic life uses (e.g., wildlife habitat). See Burbank Pet. ¶ 71. If the POTWs reduce their flow by recycling more water, the beneficial uses that those flows support could be impacted. The State Board is currently investigating flow issues in the River, convening a November 2017 public workshop in Los Angeles on the subject: Los Angeles River Existing and Future Conditions: Instream Flow Needs. Resp. RJN Ex. A.[10] Respondents contend that the State Board is exercising its authority and discretion to address Los Angeles River flow issues, including discharges from POTWs, through a comprehensive collaborative technical analysis. They argue that Waterkeeper’s request for the court to overrule the State Board’s implicit determination that the River flow study is the appropriate proceeding should be rejected. Resp. Reply at 20.

The short answer to this argument is that the extent of what the State Board must do to assess the waste and unreasonable use when the POTWs discharge wastewater is a fact issue that must be addressed at trial.[11]

E. Statement of Facts[12]

1. Waterkeeper’s Evidence

The vast majority of water supply in the Los Angeles area is imported from the Colorado River, the San Francisco Bay Delta, and the Owens Valley, and the vast majority of this imported water supply is distributed, polluted, treated, and then discharged to the Los Angeles River and the Pacific Ocean.

The four POTWs at issue are part of an integrated network of wastewater treatment, reclamation, and disposal facilities along the Los Angeles River and Santa Monica Bay. The system includes the Tillman, Glendale, and Burbank plants, all located along or immediately adjacent to the Los Angeles River, and the coastal Hyperion plant in El Segundo. AR 5136. The three upstream plants discharge wastewater into the Los Angeles River and solids to the Hyperion plant. AR 5136. The WDR authorizes the Hyperion plant to discharge up to 450 million gallons of wastewater per day (mgd) into the Pacific Ocean, with an average of about 230 mgd. AR 6, 7003. The Tillman plant is authorized to discharge up to 80 mgd into the Los Angeles River, averaging about 35-45 mgd. The Glendale plant is authorized to discharge up to 20 mgd to the River, averaging about 12 mgd. The Burbank plant is authorized to discharge up to 12.5 mgd, averaging about 8.5 mgd, to the Burbank Western Channel (a tributary to the Los Angeles River).

Despite multiple State Board policies encouraging third parties to increase recycled water, statewide 1.28 million afy is annually discharged directly into the Pacific Ocean and other marine waters under permits issued by the State and Regional Boards. AR 821. The State Board admits that California is behind on its recycled water goals of 1.5 million afy by 2020 and 2.5 million afy by 2030. AR 783. The State Board also admits that discharge of wastewater, particularly to marine waters, is not the fullest beneficial use of the resource. See AR 821.

The four POTWs are permitted to discharge hundreds of millions of gallons per day of treated wastewater—both directly into the Pacific Ocean at the Hyperion outfall pipes and into the Los Angeles River. AR 7000, 7002. Numerous beneficial uses have been identified for the wastewater discharged by the POTWs, including landscape and agricultural irrigation, groundwater recharge, seawater intrusion barrier, vehicle washing, and industrial use. AR 2847. While the huge volume of discharge serves the purpose of conveying waste, it serves no other reasonable or beneficial use, either in the Los Angeles River or Santa Monica Bay. AR 821, 7279.

The State Board, the Regional Board, and Glendale all recognize that a beneficial use for the discharged water would be superior to the discharge of the secondary treated wastewater directly into the ocean and tertiary treated water into the Los Angeles River. AR 821, 2765, 7279. Recycled water serves as a hedge against the “effects of long term drought, climate change, and water supply uncertainty.” AR 900. The Regional Board has stated that increased recycling will reduce “wasted water”, and the State Board believes that recycling is a beneficial use of increasing regional self-sufficiency and decreasing reliance on imported water. AR 821, 7279.

Both Los Angeles and Glendale recognize the water security benefits of water conservation and recycling. AR 2769-70 (Los Angeles study projects that by 2039 additional conservation will supply about 16% of water demand (by eliminating such demand); AR 2766 (Glendale recognizes that recycled water for irrigation fosters conservation). Dr. Mark Gold of UCLA estimates $7-10 billion dollars in net present value of 2016 dollars will be saved in the year 2035 if Los Angeles implements water supply efficiency projects including recycling all of Hyperion’s current discharge. AR 2811. Los Angeles has committed to ending such discharge from Hyperion by 2035. AR 20, 188, 324.

The WDRs for the four POTWs do not impose recycling requirements. The Hyperion plant WDR lists both recycling specifications and recycling monitoring specifications as “not applicable”. AR 4894, 6159, 6251. The Tillman, Burbank, and Glendale plant WDRs similarly contain no recycling monitoring requirements. AR 4939, 5105, 5272. The Burbank and Glendale plant WDRs contain “recycling specifications,” but these provisions are short descriptions of existing storage tanks for recycled water and not requirements to recycle wastewater. AR 5346, 6663.

The Glendale plant WDR includes a wastewater recycling feasibility reporting requirement to the Regional Board, not the State Board. AR 6590, 5223-24, 6786-87. Glendale recently reported that recycled water made up just 7% of its water supply in 2017. AR 2758. Glendale discharges its 7000 afy share of highly treated wastewater (tertiary treatment) from the Glendale plant into the Los Angeles River. AR 2761. Glendale admitted that this discharge could be diverted to meet non-potable demand for recycled water. AR 2761.

The Burbank plant WDR also includes an annual wastewater recycling feasibility reporting requirement. AR 5131-32. Burbank stated in its 2018-19 annual report that 55% of its tertiary treated recycled wastewater from the Burbank POTW is discharged into a tributary of the Los Angeles River. AR 344. Burbank’s long-term water supply plan projects that 50% of its highly treated recycled water will continue to be discharged through the year 2040. AR 8088.

In its 2019-2020 annual report, Los Angeles stated that in 2018-2019 it delivered only 12,000 acre-feet of recycled water from all of its POTWs. AR 188.

The cost of reducing the POTWs’ discharges to save water is reasonable, as evidenced by Los Angeles’ Hyperion plant plans and the Glendale and Burbank projects to increase diversions of treated wastewater from the Los Angeles River to support increased recycling. AR 147-62, 1468, 2811, 2869.

The technology to recycle the water discharged from the POTWs currently exists, as evidenced by the facts that West Basin Municipal Water District (“West Basin”)’s recyling program provides tertiary treatment to a portion (37 mgd) of Hyperion’s 230 mgd secondary treated effluent and uses the recycled water for irrigation and industrial applications. AR 7005. This is also shown by the fact that Glendale and Burbank both use recycled water for a portion of their water supplies. AR 7870, 2737 (Burbank: 17%), 2758 (Glendale: 7%).

The recent 2018 amendments to the State Board’s Recycled Water Policy (sometimes “Policy”) encourages recycling, but the amended Policy declines to include mechanisms to enforce mandates. AR 818. The Policy states that mandates are unrealistic and “challenging” without accurate tracking of recycled water use and an estimate of the amount of wastewater available to recycle. AR 818. The new Policy includes a “narrative goal” of minimizing discharge into the Pacific Ocean. AR 822. The Policy concludes that the narrative goal does not “involve a change to the physical environment,” so it is unclear that the narrative goal will do anything to prevent waste. AR 822. While the Recycled Water Policy includes requirements that the four POTWs in this case, and other POTWs, report on discharge of wastewater, the purpose of reporting is not to prevent waste or unreasonable use; it is to “potentially update the recycled water goals in the future based on more accurate data.” See AR 268, 273, 279, 285, 289, 827.

Similarly, the State Board’s regulations to ensure a suitably high quality of recycled water for use as Surface Water Augmentation (“SWA”) -- the placement of recycled water into existing reservoirs that provide water for treatment and distribution as potable water -- do not require water suppliers to actually use recycled water for SWA. AR 2509. The purpose of the SWA quality assurance regulations is to “adequately protect public health,” not to prevent waste and unreasonable use. AR 2456.

The State Board’s Los Angeles River Flows Study (“River Flow Study”) should answer the question of what level of flow allows for various beneficial uses on the River, including recreation, fishing, and kayaking, and the impact of recycling wastewater on these uses. AR 1450-51, 1454. Even before the River Flow Study is completed, there is ample evidence that the Los Angeles River now experiences much higher base flows than historically, meaning that current discharge levels into the River are well above that needed to support instream beneficial uses. See AR 2781 (POTWs are about 90% of dry weather River flow); AR 2802 (historical minimum flows were much lower); AR 2805 (current flow volumes may not be needed to support beneficial uses).

2. State Board’s Evidence

Residences and businesses send wastewater down the drain from showers, sinks, toilets, and industrial facilities, and this wastewater carries pollutants and pathogens with it. Prior to the existence of POTWs, untreated wastewater was discharged to rivers, streams, groundwater, and the Pacific Ocean, polluting those bodies of water, causing human health problems for people who used those waters for drinking, bathing or recreation, and impacting the health of wildlife in the waters. To combat these water quality problems, municipalities began constructing POTWs to intercept and treat wastewater before it is discharged. Because of the enormous cost of constructing POTWs, the federal government and states have subsidized their construction with $138 billion in funding since 1987.

There are more than 800 permitted POTWs in California, and they have a design capacity to treat more than 4.4 billion gallons of influent each day. The Tillman, Glendale, and Burbank plants discharge treated wastewater to the Los Angeles River or its tributaries, and the Hyperion plant discharges treated wastewater to the Pacific Ocean via an outfall five miles off the coast. Each of these facilities recycles some of its wastewater and discharges the remainder:

POTW

Discharge Point

Design Capacity (million gallons per day [mgd])

Average Daily Discharge

Average Daily Recycled Water Production

Burbank WRP

LA River trib.

12.5 mgd

2.17 mgd

2.55 mgd

Los Angeles-Glendale WRP

LA River

20 mgd

8.8 mgd

4.2 mgd

Tillman WRP

LA River

80 mgd

27.5 mgd

6.5 mgd

Hyperion Treatment Plant

Pacific Ocean

420 mgd

230 mgd

37 mgd

AR 4974, 5135, 5136, 5286, 6275, 6276; Wilson Decl., ¶46, Ex. C; Minamide Decl., ¶33.

As required by the Clean Water Act, the Regional Board has permitted the four POTWs for decades, and it most recently updated and renewed their permits in February and March 2017 to address water quality concerns. AR 4890-5058 (Tillman plant), 5059-209 (Burbank plant), 5210-361 (Glendale plant), AR 6154-336 (Hyperion plant). As an example, Hyperion’s permit was amended to require Los Angeles to study the adverse water quality effects City’s reduced volume of effluent discharge -- due to water conservation and increased water recycling – was causing through increased concentrations of pollutants like ammonia. AR 6182-83, 6288, 6986-88.

The state (first the Department of Water Resources, and later the State Board) has been tracking the use of recycled water for decades. The data collected shows a continual uptick in the amount of recycled water produced statewide: 175,220 afy (1970); 183,941 afy (1977); 266,559 afy (1987); 525,460 afy (2001); 669,000 (2009); and 714,000 (2015). AR 2847-64.

In 1977, the State Board adopted Resolution 77-1, which charted the State Board’s policy for water recycling, including planning guidance for wastewater reclamation, regulations, and a grant management program to fund construction of recycling facilities. AR 10156-58.

In 2009, the State Board adopted its first statewide Recycled Water Policy. AR 9517-33. The Policy set goals to increase the use of recycled water over 2002 levels by 1 million afy by 2020 and 2 million afy by 2030, and to increase water conservation in urban and industrial uses from 2007 levels by at least 20% by 2020. AR 9520. The Policy also directed the regional water boards to streamline permitting of recycled water facilities to remove regulatory barriers. AR 9527. The use recycled water to recharge groundwater must be reviewed on a site-specific basis, but the Policy encouraged the expansion of this type of use consistent with the protection of public health and groundwater quality. AR 9529.

In 2013, the State Board amended the Recycled Water Policy to address public health and water quality concerns from chemicals of emerging concern in recycled water. AR 8438-80.

In December 2018, the State Board again amended the Recycled Water Policy. AR 900-03. The amended Policy made recycling goals more robust, increasing the goal from 714,000 afy in 2015 to 1.5 million afy by 2020 and 2.5 million afy by 2030. AR 562. The State Board also made findings under Water Code section 13550 et seq. that it is a waste to use potable water when suitable recycled water is available. AR 564.

In recent years, the State Board and regional boards have moved from voluntary surveys to mandatory reporting. The Regional Board’s renewed permits for the four POTWs require each facility to annually “submit a feasibility report evaluating the feasibility of additional recycling, efforts to reduce the amount of treated effluent discharged as authorized by this Order and a recycled water progress report describing any updates to the development of increased recycled water production and/or distribution.” AR 4905, 5074, 5223-24, 6267.

In 2018, the State Board required its Executive Director to issue an administrative order to over 800 POTWs statewide requiring them to annually report to the State Board (i) the total volume of influent treated and discharged, (ii) the volume discharged to surface water bodies needed to support beneficial uses, (iii) the volume discharged to the Pacific Ocean, (iv) the volume of water recycled, and (iv) the uses to which recycled water is put. AR 562-64. In July 2019, the State Board’s Executive Director issued the required order. AR 264-307.

Waterkeeper filed petitions with the State Board to challenge the renewed permits for the four POTWs. See AR 3420, 5362. The petitions asserted that that State Board should independently review whether the POTWs’ discharges constituted a waste or unreasonable use. See, e.g., AR 3425. The only fact Waterkeeper asserted in its petitions to the State Board was the fact that POTWs were discharging effluent to the Los Angeles River or Pacific Ocean. See, e.g., AR 3920, 3434, 4403, 5375. The State Board denied Waterkeeper’s petitions by operation of law.

The State Board is well aware of the POTWs discharge. In 2015, it reported that POTWs discharge an estimated 1.28 million afy—417 billion gallons per year (1.142 mgd) —of treated wastewater directly to the Pacific Ocean and coastal bays. AR 821. The State Board also reported that POTWs recycled in 2015 an estimated 714,000 afy of wastewater (637 mgd), and set a goal of increasing that amount to 1.5 million afy (1.3 billion gallons per day) by 2020 and 2.5 million afy (2.2 billion gallons per day) by 2030. AR 821.

3. Real Parties’ Evidence[13]

a. Burbank

Burbank’s water supplies included imported water from the Metropolitan Water District of Southern California (“MWD”), groundwater from the San Fernando Basin, and recycled water. Wilson Decl. ¶23. Currently, 80% of Burbank’s water is imported water and groundwater. The remaining 16% is recycled water. Wilson Decl. ¶23. Burbank’s total water demand, including recycled water demand, varies from year to year. Wilson Decl. ¶¶ 13, 15-17.

Burbank owns and operates the Burbank plant, which treats collected wastewater and provides treated water for recycled water uses within the city. Wilson Decl. ¶27. The Burbank plant is part of an integrated network of facilities, known as the North Outfall Sewer, which includes four treatment plants. The upstream treatment plants (the Tillman, Glendale, and Burbank plants) discharge solids to the Hyperion plant. Id. This system also allows biosolids, solids, and excess flows to be diverted from the upstream plants to the Hyperion plant for treatment and disposal. Id.

All of the water treated at the Burbank plant is imported from MWD and is not natural to the region. The maximum treated wastewater design capacity at the Burbank plant is approximately 12.5 mgd (14,001 afy). Wilson Decl. ¶30. On average, the Burbank plant produces approximately 8,000 to 9,500 afy of treated effluent. Id.

The sewer system conveys wastewater to the Burbank plant where it is treated. Some of the tertiary treated wastewater is beneficially reused and is stored in storage tanks. Wilson Decl. ¶29. The wastewater not reused is discharged to the Burbank Channel. Recycled water that is beneficially reused for landscape irrigation percolates into the groundwater basin. Id. Burbank’s groundwater is treated and then sold again to retail customers. The sludge generated at the Burbank plant is sent back to the sewer, which conveys the sludge downstream to the Hyperion plant. Id.

Since 2008, Burbank has enacted policies and undertaken conservation efforts with the goal of reducing water usage and increasing conservation, such as its Sustainable Water Use Ordinance. Wilson Decl. ¶¶ 20-22. Burbank has aggressively pursued conservation efforts to reduce its water usage, realizing 45% water savings between 2005–2015. To achieve these water savings, Burbank adopted a conservation rate structure for single-family residential water users, which increases the cost of potable water as usage increases. Wilson Decl. ¶19.

The predominant demand for recycled water is irrigation, but Burbank has been aggressively pursuing conversion of cooling towers for HVAC systems from potable water to recycled water. Wilson Decl. ¶18. Recycled water is produced at the Burbank plant, operated by Burbank’s Public Works Department, and is delivered via an independent distribution system. Wilson Decl. ¶14. Burbank re-uses approximately 35% of its treated wastewater as recycled water. This supply serves the reasonable and beneficial non-potable demands of Burbank’s customers and inhabitants. Burbank’s recycled water supply is often used multiple times. Wilson Decl. ¶24.

Burbank has been undertaking efforts to improve and expand recycled water infrastructure including, among other things, constructing a new pump station at the Burbank plant. Wilson Decl. ¶¶ 34-39, 50-57. Burbank has also petitioned the State Board for approval to used reclaimed water for landscape irrigation, requesting an increase in the use of recycled water in 2018. Wilson Decl. ¶¶ 40-46.

Burbank faces numerous obstacles to reducing its wastewater discharges from the Burbank plant and increasing it use of recycled water. Wilson Decl. ¶58. Such obstacles include the time required for approval, limitations on uses of recycled water imposed by the State, and the cost and economic viability of such projects. Wilson Decl. ¶¶ 59-63.

b. Los Angeles

Los Angeles Sanitation and Environment (“LASAN”) is responsible for operating and maintaining Los Angeles’ wastewater collection and treatment systems, including the Hyperion, Tillman, Terminal Island, and Glendale plants. Minamide Decl. ¶¶ 6-7.

Hyperion sends on average 35 mgd to West Basin and reuses 35 mgd at the Hyperion plant itself for such uses as cooling water, cryogenic facility, the Hyperion Bioenergy Facility, and high-pressure effluent for wash-downs. Further improvements at the Hyperion plant are being planned to keep the plant on the leading edge of environmental protection. Minamide Decl. ¶¶ 9-10.

LASAN has begun to take steps to effectuate Mayor Garcetti’s pledge that Los Angeles will recycle 100% of its wastewater at the Hyperion plant by 2035, which will require significant investment in design, construction, operation, and maintenance of new facilities and infrastructure. Minamide Decl. ¶¶ 11-21, Exs. A, B; AR 147-62.

LASAN has also begun efforts to improve operations and expand the ability to recycle and treat wastewater at the Terminal Island, Tillman, and Glendale plants. Minamide Decl. ¶¶ 22-33. LASAN has also undertaken other projects, including expanded irrigation uses, fill stations, groundwater replenishment projects, satellite treatment options, new treatment technologies such as a membrane bioreactor pilot and soil aquifer treatment, and direct potable reuse (“DPR”), which are in different phases of implementation. Minamide Decl. ¶34.

Recycled water projects include a number of factors that dictate the timing and implementation of a project, including but not limited to the environmental review and approvals, funding, feasibility, physical capability/capacity, and demand (including end-users for the product). Minamide Decl. ¶35.

c. Glendale

Glendale’s total water demand, including recycled water demand, varies from year to year. Glendale’s recycled water customer demand also varies and is between 1,500 and 2,000 afy, which is approximately 7% of the total demand. De Ghetto Decl. ¶¶ 15-16.

Glendale is co-owner with Los Angeles of the Glendale plant, which is part of an integrated network of facilities, known as the North Outfall Sewer and includes four wastewater treatment plants. De Ghetto Decl. ¶28. The upstream treatment plants (Tillman, Glendale, and Burbank) discharge solids to the Hyperion plant. This system also allows biosolids, solids, and excess flows to be diverted from the upstream plants to the Hyperion plant for treatment and disposal. Id.

Glendale has taken numerous steps to decrease its overall water demands by increasing its water conservation efforts, including adopting water waste prohibition ordinances, installing a complete Advanced Metering Infrastructure (“AMI”) system (also referred to as “smartmeters”), providing multiple customer tools to use the AMI data including online and application based tools to monitor and control their water usage, and automated leak alerts which notify a customer of a potential leak on their premises, rebates for water-saving plumbing fixtures, rain barrels, and drought tolerant landscaping training classes and information. De Ghetto Decl. ¶17. Glendale continues to pursue its water conservation efforts and its water use is 18% below 2013 levels. De Ghetto Decl. ¶19.

Glendale was an early user of recycled water to offset the need for imported water supplies. De Ghetto Decl. ¶¶ 33-36. In 2016, Glendale petitioned the State Board for approval of its plans to increase its use of its recycled water supply from the Glendale plant, which was approved in 2019. De Ghetto Decl. ¶¶ 37-41.

Recycled water accounts for 7% of Glendale’s current water supply. Recycled water use has been approved to increase in the near future by 400 afy, which will reduce imported water use by the same amount. De Ghetto Decl. ¶25. In the long term, as the State Board approves direct potable reuse (DPR) regulations and treatment procedures, Glendale could re-use its remaining share of water produced at the Glendale plant. Subject to regulatory approvals, this could more than double the amount of recycled water used to offset imported supplies. De Ghetto Decl. ¶26.

In 2019, Glendale’s recycled water demand was only 1,535 afy because the year was wetter than normal. By 2023, Glendale’s recycled water demand is projected to reach 2,400 afy, which constitutes approximately 37% of Glendale’s share of treated wastewater from the Glendale plant and will serve approximately 10% of Glendale’s customers’ demands. De Ghetto Decl. ¶43.

Glendale’s commitment to recycled water is exemplified by provisions in its Municipal Code and its investment in new recycled water infrastructure and upgrades. De Ghetto Decl. ¶¶ 44-51. Glendale continues to upgrade its wastewater collection system and the Glendale plant to deliver even more of its wastewater to the Glendale plant instead of the Hyperion plant for beneficial use in the area. De Ghetto Decl. ¶¶ 48-49.

Glendale has and continues to face numerous obstacles to reducing its wastewater discharges from the Glendale plant and increase its use of recycled water, including Waterkeeper’s opposition to Glendale’s increased use of recycled water from Glendale plant, the difficulty and lengthy nature of the regulatory approval process, the lack of demand for recycled water, recent State legislation disincentivizing new recycled water projects, and the cost and complexity of recycled water projects. De Ghetto Decl. ¶¶ 56-72.

E. Analysis

Petitioner Waterkeeper’s opening brief seeks traditional mandamus compelling the State Board to (a) analyze the four POTWs discharges consistent with the seven factors set out in its State Board Imperial Decision and (b) issue enforceable requirements and timelines to prevent ongoing waste from the discharges. Pet. Op. Br. at 20. In reply, Waterkeeper retreats from this position and seeks only to compel the State Board to analyze the discharges and consider all relevant factors in sufficient detail to enable effective judicial review. Reply at 13.

1. The State Board’s Mandatory Duty to Prevent the POTWs’ Unreasonable Use of Wastewater

Both the State Board and Real Party Cities argue that the court should revisit its ruling that the State Board has a mandatory duty to assess the four POTWs’ waste and unreasonable use of discharge wastewater under the facts pled in the Petitions. Both oppositions note that the court is not bound by its demurrer ruling. “If the demurrer is erroneously overruled, [the objecting party] is acting properly in raising the point again, at his next opportunity. If the trial judge made the former ruling himself, he is not bound by it.” Ion Equipment Corp. v. Nelson, (1980) 110 Cal.App.3d 868, 877. State Board Opp. at 13; Real Parties Opp. at 13-14. Real Parties also note that no previous court has held that the State Board has a mandatory duty to enforce the reasonable use doctrine, or that the reasonable use doctrine imposes a specific duty or a legal requirement on the State Board to investigate the reasonableness of a POTW’s discharge of wastewater. Real Parties Opp. at 13. Waterkeeper replies that courts generally refuse to reconsider interim orders “supported by substantially the same showing as the one denied.” City and County of San Francisco v. Muller (1960) 177 Cal.App.2d 600, 603–04. Reply at 2.[14]

In arguing that the court should revisit its ruling, the State Board and Real Parties repeat some of their arguments made for the demurrer. Both contend that Article X, section 2 imposes a duty on water users to not waste or unreasonably use water, not on the State Board to prevent water users from wasting water and this constitutional prohibition on preventing waste has only ever been applied to curtail a water user’s waste or unreasonable use of water. See, e.g., Joslin, supra, 67 Cal.2d at 132. The note that, while the State Board has broad authority to prevent waste and unreasonable use (EDF I, supra, 20 Cal.3d at 341-42; Imperial Irrigation II, supra, 225 Cal.App.3d at 548), no court has ever interpreted Article X, section 2 or section 100 to impose a mandatory duty for the State Board to ensure that water users comply with their constitutional duty to avoid wasting water. Similarly, they contend that section 275 grants the State Board with the authority to “take all appropriate” actions before executive, legislative or judicial agencies to prevent waste, but no court has ever interpreted it to compel the State Board to action a particular action in a particular case. See, e.g., Gananian v. Wagstaffe, supra, 199 Cal.App.4th at 1540-44. Board Opp. at 13-14. See Real Parties Opp. at 13-14.

Real Parties add to their previous arguments by noting that Article X, section 2 expressly provides that the Legislature may enact laws in the furtherance the constitutional policy, and the Legislature has not hesitated to do so by directing the State Board to apply the reasonable use doctrine to water appropriation issues. Division 2 of the Water Code governs the State Board’s administration of water appropriations and is expressly declared to be in furtherance of Article X, section 2. Water Code §1050. All water appropriations are subject to a prior State Board determination that the use will be reasonable and beneficial. See Water Code §1200 et seq. The State Board “shall make such investigations of the water resources of the State as may be necessary for the purpose of securing information needed in connection with” whether to permit such appropriations. Water Code §1251. See Central Delta, supra, 124 Cal.App.4th at 260 (State Board violated Water Code by failing to investigate and evaluate whether the proposed use was reasonable and beneficial prior to issuing a water rights permit). State Board approval in compliance with Article X, section 2 also is required when a POTW petitions to change the place of discharge, place of use, or purpose of use of treated wastewater. Water Code §1211; In the Matter of Treated Waste Water Change Petition WW-20 of El Dorado Irrigation Dist., (1995) WR 95-9, 1995 WL 418673, *16. Real Parties Opp. at 15-16.

Real Parties note that the Legislature further has declared certain water uses beneficial and other uses wasteful and specifically authorized the State Board to prevent such wasteful uses. Water Code §461 (the people’s primary interest in the conservation of water resources requires the maximum reuse of reclaimed water in the satisfaction of requirements for beneficial uses of water); 13550 (use of potable water is wasteful if recycled water is available and meets quality criteria); Water Code § 13550(a)(1-4) (State Board may order a water user to use recycled water or to cease using potable water if it determines that recycled water is of adequate quality for the proposed use, is furnished at a reasonable cost, and will not adversely affect downstream water right holders and the environment). Real Parties add that Water Code section 13550 declares only that the water user’s use of potable water is unreasonable under specified circumstances, not that the State Board has a duty to require the water supplier to provide recycled water, much less a duty to prevent a discharger from discharging wastewater. Real Parties Opp. at 16.

Real Parties argue that, in contrast, the entire statutory scheme for the regulation of water quality, including the permitting of discharges of wastewater (Water Code §13260 et seq.), is silent with respect to the reasonable use doctrine. The State Board and regional boards are granted broad and extensive powers to regulate discharges of wastewater as necessary to protect the quality of the state’s waters, but nothing in the statutory framework imposes a mandatory duty on the State Board to investigate the reasonableness of any discharge of wastewater. The Legislature has not declared that the discharge of wastewater is wasteful, and the Legislature’s silence in regulating water quality is telling and meaningful. Real Parties conclude that Article X, section 2 and section 100 must be read in conjunction with these legislative impositions of duty. Real Parties Opp. at 17.

The Legislature’s specific regulation of water appropriation through the State Board, and its silence in regulating water quality, have little bearing on the State Board’s duty to prevent unreasonable use and waste. The Legislature’s regulation of unreasonable use and waste is relevant, and the court’s demurrer ruling expressly discussed the Legislature’s enactment of sections 100 and 275 in addition to Article X, section 2 as reflective of the State Board’s mandatory duty.

Real Parties conclude that, if Article X, section 2 and section 100 impose a mandatory duty on the State Board to prevent all unreasonable uses of water, including wastewater, then the State Board necessarily has a duty to conduct investigations of all wastewater discharges in the state and to prevent the use of potable water when recycled water is available, making superfluous the express duties imposed on the State Board by Water Code sections 1251 and 13550. Real Parties Opp. at 17-18.

This argument is a strawman. The court never ruled on demurrer that the State Board has a duty to investigate all wastewater discharges. The State Board has a constitutional duty under Article X, section 2, and a statutory duty under section 100, to prevent waste and unreasonable use of water resources, including wastewater. Section 275 underscores this duty by requiring the State Board to take appropriate action to prevent waste and unreasonable use. This is a mandatory duty, but not a ministerial one. The State Board has wide discretion to decide the manner in which it complies with its constitutional and statutory duty to prevent the waste and unreasonably use of water resources, and this discretion imposes no duty to address unreasonable use in the vast majority of circumstances. The State Board’s duty to act 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. Thus, the express duties in Water Code sections 1251 and 13550 are not superfluous.

Real Parties argue that interpreting Article X, section 2 to impose a mandatory duty on the State Board to evaluate the reasonableness of water discharges would conflict with other constitutional provisions and declared policies authorizing local agencies, such as Real Parties, to manage their water resources in furtherance of Article X, section 2. See Article XI, §7 (granting cities broad discretionary power to “make and enforce within its limits all local police, sanitary, and other ordinances and regulations not in conflict with general laws.”); Water Code §380 (“[t]he various regions of the state differ widely in the availability of water supplies and in the need for water for beneficial uses,” “[d]ecisions regarding operations to meet water needs can depend in part upon regional differences,” “[m]any water management decisions can best be made at a local or regional level, and “[t]he authority granted by this chapter to local and regional public agencies… is in furtherance of the policy declared in Section 2 of Article X of the California Constitution.”). Real Parties provide evidence that a city’s decision to recycle water is informed by a number of highly complex, multi-faceted and technical issues that occurs long before a POTW elects to discharge some or all of its wastewater and seeks a NPDES permit for doing so. See, e.g., Wilson, ¶¶ 56, 61-63; De Ghetto, ¶¶ 62-65, 70-72. Real Parties Opp. at 18-19.

Real Parties fail to explain why the statutory right of local agencies to manage their water resources conflicts with the State Board’s mandatory duty to prevent waste and unreasonable use. Real Parties acknowledge that the State Board has the authority to prevent waste and unreasonable use by water users and imposing a duty to do so has little bearing on local agency water resource management.

Both the State Board and Real Parties also argue that a mandatory duty under Code of Civil Procedure section 1085 are not to be conjured out of implied words in a statute. Instead, such a duty is only found where a statute imposes a “clear,” usually “ministerial” duty. US Ecology, Inc. v. State of Cal., (2001) 92 Cal.App.4th 113, 137-38. “A statute is deemed to impose a mandatory duty on a public official only if the statute affirmatively imposes the duty and provides implementing guidelines.” O’Toole v. Superior Court, (2006) 140 Cal.App.4th 488, 510. Real Parties contend that the broad declarations expressed in Article X, section 2, and section 100 are less amenable to a writ designed to dictate specific conduct.[15] Board Opp. at 14; Real Parties Opp. at 17-18.

The court recognized in its demurrer ruling that the nature of the duties imposed on the State Board by Article X, section 2 and section 100 are general and highly discretionary. But the plain language of Article X, section 2 creates a mandatory duty for all responsible agencies, including the State Board, to prevent the waste or unreasonable use of water. The courts have repeatedly held that both Article X, section 2 and section 100 create a “clear, mandatory duty to avoid wasting water, prevent flooding and provide drainage.” Elmore, supra, 159 Cal.App.3d at 193; see also City of Barstow v. Mojave Water Agency, supra, 23 Cal.4th at 1236; Imperial Irrigation I, supra, 186 Cal.App.3d at 1170-71 (citing Elmore). A public agency can be compelled to act to prevent a waste of water pursuant to this constitutional duty. See Elmore, supra, 159 Cal.App.3d at 197-98.

Moreover, the California Supreme Court in Audubon explained that the State Board’s role in implementing Article X, section 2 has steadily evolved from the narrow role of deciding priorities between competing appropriators to the charge of comprehensive planning and allocation of waters. Id. at 444. The State Board’s role of planning and allocation of waters must include wastewater. See also EDF I supra, 20 Cal.3d at 343-44 (State Board’s responsibility to regulate wastewater reclamation included plans for wastewater reclamation throughout the state).

The court stands by its ruling that the State Board has a general, mandatory duty under Article X, section 2 and section 100, as reinforced by section 275, to assess the four POTWs’ waste and unreasonable use when they discharge wastewater. This is the key issue in this case, and the court acknowledges that no court has ever so held. If the court is wrong, then no further analysis is required. If the court is correct, the nature and extent of that duty must be examined.

2. Waterkeeper Has Demonstrated Facts Triggering the State Board’s Mandatory Duty

The court noted in its demurrer ruling that the State Board does not have a duty to investigate allegations of waste and unreasonable use in the vast majority of circumstances. Dem. Ruling at 26-27. The court concluded, however, that the State Board has a duty in this case because Petitioner alleged that the POTWs collectively discharges hundreds of millions of gallons (mgd) of wastewater each day. Id. at 27.

The State Board correctly notes that “[a] demurrer tests the legal sufficiency of the pleadings...[and] the court accepts that the facts alleged in the pleading are true.” Comm. On Children’s Television, Inc. v. Gen. Foods Corp., (1983) 35 Cal.3d 197, 213-14. State Board Opp. at 13, n.3. The State Board asks the court to reconsider this issue based on the actual evidence. The State Board disagrees that the mere fact that a POTW is discharging effluent—as those multi-billion dollar pieces of public infrastructure were designed to do—triggers a duty for the State Board to investigate the four POTWs. State Board Opp. at 14-15.

The State Board notes that the only fact asserted by Waterkeeper in its petition to the State Board was that the four POTWs were discharging effluent to the Los Angeles River and Pacific Ocean. See AR 3920 (Burbank plant discharges up to 12.5 mgd); AR 3434 (Glendale plant discharges up to 20 mgd); AR 4403 (Tillman plant discharges up to 46 mgd); AR 5375 (Hyperion plant discharges up to 230 mgd). The State Board knows that California’s more than 800 POTWs discharge effluent, including the four POTWs at issue. AR 271-307 (State Board order to 836 POTWs). In 2015, the State Board reported that POTWs discharge an estimated 1.28 million afy (417 billion gallons per year), or 1.142 mgd. At the same time, the State Board reported that POTWs recycled an estimated 714,000 afy (637 mgd), setting a goal to increase that amount by 2020 to 1.5 million afy (1.3 billion gallons per day) and by 2030 2.5 million afy (2.2 billion gallons per day). State Board Opp. at 15.

The State Board argues that the facts that POTWs are discharging effluent and that they should increase the amount they recycle are implicit in its statewide POTW recycling goals. It cannot be the standard that a petition to the State Board alerting it to the fact that POTWs are discharging wastewater -- even hundreds of millions of gallons per day – is all that is required to impose a mandatory duty to investigate waste and unreasonable use at those plants. By that rationale, any person could compel the State Board to commence a waste and unreasonable use investigation by making similar assertions for many of the 800 other POTWs in the state. More is required to trigger that duty than Waterkeeper submitted to the State Board. State Board Opp. at 15-16. See also Real Parties Opp. at 21-22.

The court disagrees. As Waterkeeper replies (Reply at 2), the State Board confirms the Petitions’ factual assertion that the four POTWs collectively discharge on average almost 300 mgd of treated wastewater into the Santa Monica Bay and the Los Angeles River, and are authorized to discharge more. State Board Opp. at 10. The disposal of such a significant volume of water with no evaluation whether the discharge constitutes a waste and unreasonable use of water violates the State Board’s mandatory duty under Article X, section 2 and section 100. This volume of discharge is so great that the Regional Board’s issuance of permits triggered the State Board’s affirmative duty to prevent waste. See City and County of San Francisco v. Muller, supra, 177 Cal.App.2d at 603–04. The State Board has the affirmative, mandatory duty to prevent the waste and unreasonable use of this water resource, and that duty is enforceable by traditional mandate. Reply at 3.

The State Board’s argument that using the amount of effluent to compel a mandatory duty would allow any person to compel an investigation of the more than 800 other POTWs in the state is incorrect. There is no evidence that any other POTW in the state even remotely comes close to the level of wastewater discharge by the four POTWs. 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. Dem. Ruling at 21. 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.

Waterkeeper additionally argues that the context of the water usage and discharge in the Southern California area served by the POTWs provides further evidence that the State Board’s duty to prevent waste is triggered. The Los Angeles area practices “pump and dump” whereby large volumes of water are pumped into the region from Northern California and the Colorado river at significant energy and environmental costs. The water is used once, sent to the four POTWs for treatment, and then discharged into the Los Angeles River (AR 4892, 5062, 5212), and Santa Monica Bay. AR 6157. According to Waterkeeper, the cost and effort of bringing a scarce resource to the Los Angeles basin, using it, and then dumping it is strong evidence that a waste and unreasonable use of water is occurring. AR 3733–4. Reply at 3-4.

Waterkeeper further contends that facts concerning the potential for recycling in the Los Angeles area show that the four POTWs discharge constitutes waste: (a) the wastewater discharged to the Los Angeles River is high-quality, tertiary treated wastewater; (b) excessive discharges into the Los Angeles River harm native species and promote the growth of invasive species; (c) the three upstream POTWs have the potential of recycling an additional 95,772 afy of wastewater without harming beneficial uses; and (d) the geology of the nearby San Fernando Valley makes it ideal for storing recycled water. Reply at 4.

The court need not agree with Waterkeeper on either its pump and dump argument or its argument about the feasibility of recycling and the harm caused by excessive discharge[16] to conclude that the State Board has an initial duty to consider whether and how to prevent waste and unreasonable use of the POTWs’ wastewater discharge. These issues raised by Waterkeeper are for the State Board’s expert analysis.[17]

3. The State Board Has Considerable Discretion its Evaluation

Waterkeeper’s opening brief argues that “the State Board must take the extra step of imposing binding targets or participation in recycling programs” and seeks to compel the State Board to issue enforceable requirements and timelines to prevent ongoing waste from the POTWs’ discharges. Pet. Op. Br. at 11, 20.

Real Parties respond that, even if the State Board has a mandatory duty to prevent the waste and unreasonable use of wastewater, it does not have a mandatory duty to impose statewide reasonable use requirements for all discharges. Real Parties correctly note that the court’s demurrer ruling concluded that, while the State Board has a mandatory duty to prevent waste and unreasonable use, “this duty is generalized in nature, and the State Board has discretion to pick and choose which unreasonable use or waste of water to investigate and enforce.” Dem. Ruling at 24. Real Parties argue that the court should again reject Waterkeeper’s argument that the State Board has no discretion. Real Parties Opp. at 19.

Real Parties attempt to support their position by arguing that the Legislature has comprehensively addressed recycled water and never mandated that wastewater be recycled. The Legislature has encouraged and incentivized the use of recycled water,[18] required water suppliers to critically evaluate their ability to increase the use of recycled water,[19] and regulated recycled water usage.[20] But the Legislature has avoided imposing mandatory quotas on recycled water use, thereby leaving implementation of the state’s policy on the use of recycled water to local water supply providers in the best position to make highly complex and technical decisions regarding their water supply needs and compliance with the reasonable use doctrine. See Water Code §380. Real Parties contend that no statute mandates the use of recycled water.[21] Real Parties conclude that, given this statutory framework of broad and general declarations encouraging the use of recycled water, no statute commands the State Board to amend its Recycled Water Policy or to adopt statewide regulations establishing wastewater discharge quotas or mandate recycled water use. Real Parties Opp. at 19-21.

Real Parties explain that there are common sense reasons why the Legislature has refrained from mandating the reuse of wastewater. First, although in this case both the discharger and the water supplier are one – all three Real Parties have both water supply and wastewater divisions –this is not always true; a discharger may have no authority to recycle. Second, only a fraction of the entities with legal authority to recycle have a need for recycled water in their location. See AR 5, 803, 819. Third, the demand for recycled water is limited by its permitted uses. When Real Parties’ permits were issued, recycled water could only be used for irrigation and replenishment of groundwater supplies.[22] Fourth, recycled water projects are infrastructure intensive and expensive, requiring tertiary or better treatment, separate distribution systems, and infrastructure to prevent cross-contamination. Cities with constrained resources may not be able to fund recycled water projects without grants. See, e.g., De Ghetto Decl., ¶¶ 50-51, 70-72; AR 9098, 9103-04.

Real Parties’ discussion of the Legislature’s encouragement of recycling without mandating that wastewater be recycled has little bearing on the State Board’s duty. The court stands by its statement on demurrer that, while the State Board’s duty to prevent waste and unreasonable use is mandatory, this duty is generalized in nature and the State Board has considerable discretion to pick and choose which unreasonable use or waste of water to investigate and enforce. Dem. Ruling at 24.

The State Board’s discretion does have 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 discharge into the Los Angeles River and the Pacific Ocean is so large that the State Board must investigate the issue. As Waterkeeper’s counsel argued at the September 3, 2019 hearing, the POTWs’ permits are the trigger for the State Board’s duty to act, but there otherwise is no link between the two. The State Board’s duty to act is not part of the permitting process and the State Board’s duty arises from its actual or constructive knowledge of the quantity of discharge allowed by the POTWs’ permits.

In reply, Waterkeeper retracts its opening brief statement and states that it does not seek to define the manner in which the State Board addresses the waste and unreasonable use of water at the four POTWs. Waterkeeper does not dispute that many viable solutions for preventing waste and unreasonable use may exist, depending on what facts are found in evaluating the discharges from these four POTWs. However, the State Board may not do nothing when faced with facts demonstrating waste and unreasonable use. Reply at 5.

The court agrees. The State Board has wide discretion to decide the manner in which it will comply with its constitutional duty to prevent the waste and unreasonably use of water resources. The State Board has discretion when and how it will enforce its constitutional duty, and the court may not compel the Board to exercise its discretion in a particular manner. AFSCME, supra, 126 Cal.App.4th at 261. However, the four POTWs are unique in the level of their wastewater discharge into the Los Angeles River and Pacific Ocean and the State Board can be compelled to exercise its discretion in the first instance. Dem. Ruling at 21.

The State Board has considerable discretion in using its expertise to evaluate the POTWs’ discharge as a waste and unreasonable use, but it may not avoid exercising this discretion entirely. When it exercises that discretion, the State Board must explain how the discretion was exercised by showing that it has adequately considered all relevant factors and by demonstrating a rational connection between those factors, the choices made, and the purposes of Article X, section 2 and section 100.

4. The State Board Has Not Met Its Discretionary Mandatory Duty

a. The State Board’s Admission That It Has Never Conducted a Reasonable Use Analysis

The court’s demurrer ruling noted that the State Board must take some action to exercise its duty to regulate unreasonable use and waste; to do nothing is an abuse of discretion. Dem. Ruling at 29. Waterkeeper argues that the State Board has never conducted any reasonable use or waste analysis for millions of gallons per day discharge, or otherwise taken any other steps to prevent waste, because it consistently has contended that it has no duty to do so. Pet. Op. Br. at 8.

In December of 2019, the State Board responded to interrogatories propounded by Waterkeeper. In those responses, the State Board confirmed that it had never conducted any reasonable use or waste analysis of the discharge from any of the four POTWs. State Wat. Resources Control Bd.’s Responses to Petitioner's Special Interrogatories, Set One, (“Interrogatories Set One”) No. 11, p. 10; State Wat. Resources Control Bd.’s Responses to Petitioner’s Special Interrogatories, Set Two, (“Interrogatories Set Two”) No. 11, pp. 9-10; State Wat. Resources Control Bd.’s Responses to Petitioner's Special Interrogatories, Set Three, (“Interrogatories Set Three”) No. 11, pp. 9-10. The State Board also conceded that it has no position on whether the POTW discharges are a waste or unreasonable use of that water resource. Interrogatories Set One, No. 7, p. 8; Interrogatories Set Two, No. 7, p. 8; Interrogatories Set Three, No. 7, p. 8.

The State Board’s admissions are dispositive. 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. None of the remaining evidence submitted by the State Board and Real Parties affects this conclusion that the State Board has not met its duty. Nonetheless, this evidence is addressed as follows.

b. Reporting Requirements

The State Board relies on “data gathering and required reporting” to show compliance with its mandatory duty to investigate the POTWs’ discharges and recycled water use. The state (first the Department of Water Resources and then the State Board) has been tracking the use of recycled water for decades. The data collected shows a continual uptick in the amount of recycled water produced statewide: 175,220 afy (1970); 183,941 afy (1977); 266,559 afy (1987); 525,460 afy (2001); 669,000 (2009); and 714,000 (2015). AR 2847-64. State Board Opp. at 20-21.

The WDRs issued by the Regional Board in 2017 triggered the State Board’s duty to take action to prevent waste and unreasonable use, but the Regional Board did not perform a reasonable use/waste analysis in issuing them. The Hyperion plant’s WDR lists both recycling specifications and recycling monitoring specifications as “not applicable”. AR 4894, 6159, 6251. The Tillman, Burbank, and Glendale plant WDRs also contain no recycling monitoring requirements. AR 4894, 4939, 5105, AR 5272. None of the WDRs indicate that the Regional Board considered any relevant reasonableness and waste factors.

The State Board notes that, in recent years, the State Board and regional boards have moved from voluntary surveys to mandatory reporting. The WDRs issued by the Regional Board required each of Los Angeles, Burbank, and Glendale to annually submit a report “evaluating the feasibility of additional recycling efforts to reduce the amount of treated effluent [and] a recycled water progress report describing updates to the development of increased recycled water production and/or distribution.” AR 4905, 5074, 5223-24, 6267, 6292. State Board Opp. at 20.

In 2018, the State Board required its Executive Director to issue an administrative order to the state’s more than 800 POTWs requiring them to annually report to the State Board (i) the total volume of influent treated and discharged, (ii) the volume discharged to surface water bodies needed to support beneficial uses, (iii) the volume discharged to the ocean, (iv) the volume of water recycled, and (iv) the uses to which recycled water is put. AR 562-64. In July 2019, the State Board’s Executive Director issued the order. AR 264-307. State Board Opp. at 20.

The reporting requirement in the four POTWs’ WDRs does not fulfill the State Board’s duties. No doubt, the feasibility reports are relevant to a reasonableness/waste evaluation, but no evaluation has occurred, and the State Board has never concluded that it cannot perform an evaluation of reasonableness without the feasibility reports.

In fact, the reporting shows that the discharges constitute considerable potential waste. Glendale reported that recycled water made up just 7% of its water supply in 2017. AR 2758. Glendale effectively admits that its discharge of 7000 afy of highly treated wastewater (tertiary treatment) into the Los Angeles River is not the maximum beneficial use for this water. AR 2761. Burbank reported in its 2018-19 annual report that 55% of its tertiary treated recycled water at the Burbank plant is discharged into a tributary of the Los Angeles River, and it projects that 50% of this wastewater will continue to be discharged through the year 2040. AR 344, 8088. Los Angeles stated in its 2019-2020 annual report that in 2018-19 it delivered only 12,000 afy of recycled water from its POTWs out of a potential 250,000 afy, a recycling rate of less than 5% of the discharges authorized. AR 188. Pet. Op. Br. at 13-14.

c. Funding

The State Board notes that it is expensive to build and operate a recycled water facility. Los Angeles estimates that it will cost billions of dollars to complete its project to recycle 100% of the Hyperion plant’s wastewater. Minamide Decl. ¶11; AR 9624 (cost of $11 billion to recycle 1.5 million afy). In the past ten years, the State Board has awarded $2.1 billion in grants and loans to help fund local agencies’ development of recycled water facilities. AR 26-28. This includes over $250 million for projects in the Los Angeles region (region 4) which will produce an additional 26,000 afy of recycled water. Ibid. Burbank and Los Angeles are among the recipients of this State Board funding. See, e.g., AR 2609, 7880, 7931, 8337. State Board Opp. at 23-24.

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. Nothing about the funding shows that the State Board is taking steps to prevent waste or unreasonable use of water discharged at the four POTWs.

d. The Recycled Water Policy

The State Board relies on its Recycled Water Policy to support its compliance with its mandatory duty. The Policy was initially adopted in 2009, and it set goals for water conservation and the use of recycled water. AR 9517-33. The Policy also directed regional water boards to streamline permitting of recycled water facilities to remove regulatory barriers and encourage the use of recycled water to recharge groundwater, which is reviewed on a site-by-site basis consistent with the protection of public health and groundwater quality. AR 9527, 9529. The State Board amended its Recycled Water Policy in 2013 to address public health and water quality concerns from chemicals of emerging concern in recycled water. AR 8438-80. State Board Opp. at 20.

In December 2018, the State Board again amended the Recycled Water Policy, making its recycling goals more robust by seeking to double the amount of recycled water from 714,000 afy in 2015[23] to 1.5 million afy by 2020, and then 2.5 million afy by 2030. AR 562, 900-03. The State Board made findings consistent with Water Code section 13550 that it is a waste to use potable water when suitable recycled water is available. AR 564. State Board Opp. at 20.

The State Board argues that it and the Legislature have set ambitious statewide recycling goals, which have been consistently ratcheted upwards. While those goals have not yet been achieved, the state is headed in the right direction. The data on 2019 discharge and recycling volumes that is currently being reported will inform the State Board and the public help assess the statewide progress made over the past five years towards the state’s 2020 and 2030 numeric recycling goals. State Board Opp. at 27.

The State Board’s Recycled Water Policy does not evaluate, and does not prevent, unreasonable or wasteful POTW discharges. The most recent amendments to the Policy declined to include mechanisms to enforce recycling goals, citing the lack of accurate tracking of uses of recycled wastewater and estimates of the volume available to recycle. AR 818. The new Policy includes a “narrative goal” of minimizing discharge into the Pacific Ocean. AR 822. However, the Policy concludes that the narrative goal will not “involve a change to the physical environment,” from which Waterkeeper suggests that the narrative goal will not do anything to prevent waste. AR 822. Pet. Op. Br. at 11-12.

In explaining the narrative goal’s purpose as “encouraging utilities to consider recycling treated wastewater for beneficial use, rather than disposing of it”, the Recycled Water Policy implicitly admits that direct ocean discharge of wastewater fails to use such water to any beneficial use. AR 821. While the Recycled Water Policy includes requirements for the four POTWs to report on discharge of wastewater, the purpose of these requirements is not to prevent waste or unreasonable use, but to “potentially update the recycled water goals in the future.” See AR 268, 273, 279, 285, 289, 827. The Recycled Water Policy therefore fails to fulfill the State Board’s mandatory duty to evaluate and prevent the waste or unreasonable use of discharge from the POTWs.[24] See Pet. Op. Br. at 12.

e. Regulations

The State Board argues that it has attempted to increase recycled water use by streamlining the permitting of recycled water facilities and the use of recycled water.

Recycled water can transport residual pollutants or pathogens not removed at the POTW and therefore has the potential to impact water quality in receiving waters. Therefore, the use of recycled water generally requires a water quality permit which contains conditions to protect surface or groundwater from potential adverse water quality impacts that using recycled water might cause. See Water Code §§ 13522.5, 13524. Reducing the total volume of treated wastewater discharged through increased recycling also can have the unintended effect of increasing the concentration of pollutants like ammonia in the remaining effluent discharged. This phenomenon is occurring at the Hyperion plant, and the Regional Board has required Los Angeles to analyze how it can ensure that reduced effluent discharges do not harm water quality. AR 6183, 7015, 7187-88. State Board Opp. at 26.

Prior to 2014, those recycled water permits were issued ad hoc by each of the state’s nine regional water quality control boards. During the recent drought, Governor Brown directed the State Board to adopt a single, uniform statewide permit for the use of recycled water to ease the regulatory burden on new recycled water facilities. AR 8400, 8404. The State Board complied and adopted a statewide general permit (WDR) for recycled water facilities to ease that regulatory burden. AR 8400-437. The State Board replaced that permit in 2016 with a different statewide permit (WRR) for recycled water. AR 8000-47. These general recycled water permits are intended to encourage more recycled water production by allowing new facilities to come online faster, with fewer regulatory burdens and uncertainty. AR 8004-05. State Board Opp. at 21-22.

The State Board also has adopted regulations to increase recycled water use by expanding the potential uses of recycled water. To protect public health and water quality from potential adverse consequences of recycled water use, such water can only be used for purposes approved by regulation. Water Code §§ 13521, 13524. Until 2014, those uses were limited to non-potable reuses such as lawn, crop, landscape irrigation, and industrial processes. 22 CCR §60300 et seq. This limitation on the potential uses of recycled water made its production less economically feasible, especially in urban areas. State Board Opp. at 22.

In 2010, the Legislature directed DPH, and later the State Board, to investigate the feasibility of authorizing recycled water to be used for potable uses, either indirectly by using recycled water to recharge groundwater or augment surface water reservoirs (indirect potable reuse), or directly by introducing recycled water into a public water system (direct potable reuse). Stats. 2010, ch. 700, § 3 (SB 918); Stats. 2013, ch. 637 (SB 322); Stats. 2014, ch. 3 (SB 104); Stats. 2017, ch. 528, § 4 (AB 574). Expanding the potential use of recycled water to include human consumption creates significant new uses of recycled water, provides POTWs with a significantly expanded market, and provides POTWs with a policy and financial incentive to increase the production of recycled water. In a letter to the Legislature, Waterkeeper described direct potable reuse (DPR) as a “critical strategy” and a “crucial tool to meet our local and state water recycling goals” which can be a “game-changer.” AR 7856-57.

The State Board notes, however, that the use of recycled water to augment drinking water supplies raises a host of public policy issues that requires close study before it might be approved. Water Code §13560(d). State Board Opp. at 22-23. DPH and the State Board have devoted substantial resources to those efforts. In 2014, DPH adopted water recycling criteria governing indirect potable reuse of recycled water through groundwater recharge. 22 CCR §§ 60320.100 and 60320.200 et seq. In 2018, the State Board adopted regulations governing indirect potable reuse of recycled water through surface water augmentation (SWA). 22 CCR §60320.300 et seq. The so-called holy grail of direct potable reuse remains under study. In 2016, based on advice from an expert panel and an advisory group of stakeholders, the State Board determined that it is feasible to use recycled water for direct potable reuse, but concluded that “it presents very real scientific and technical challenges that must be addressed to ensure the public’s health is reliably protected at all times.” AR 7304-46. The Legislature concurred, extending the State Board’s deadline to issue regulations to 2023 and allowing the State Board to extend that deadline by another 18 months if needed. Water Code §13561.2.

In April 2018, the State Board issued a Proposed Framework for Regulating Direct Potable Reuse in California. AR 2408-51. Once regulations authorizing direct potable reuse are issued, the State Board expects the expanded market will provide a significant incentive to POTWs to expand their recycled water production capacity. State Board Opp. at 22-23.

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. It is also worth noting that the State Board’s 2018 regulation does not require water suppliers to use Surface Water Augmentation to augment raw water supplies in reservoirs (AR 2509) and the projected deadline for a regulation on direct potable reuse does nothing now to prevent unreasonable use. Pet. Op. Br. at 12-13.

f. The River Flow Study

The production of recycled water by its nature also results in a reduction in the discharge of treated wastewater. The reduction in the discharge of treated wastewater can harm the beneficial uses of the surface water that was augmented by treated wastewater. For example, water-dependent species or human uses (such as kayaking) may rely on the treated wastewater flows in the Los Angeles River. Additionally, downstream water right holders may have come to rely on the ability to divert water from a river whose flow is augmented by upstream treated wastewater discharges. To protect against these potential adverse consequences, section 1211 requires wastewater treatment plants to file a petition with the State Board to approve the reduction in flow caused by increased recycling and for the State Board to consider these potential adverse impacts before approving a wastewater facility’s decrease in the discharge of treated wastewater. Water Code §§ 1211, 1701, 1701.1, 1701.2.[25] State Board Opp. at 24-25.

In the past half dozen years, the State Board has received a number of section 1211 applications from the four POTWs to reduce their discharges to the Los Angeles River through increased recycling. See, e.g., AR 741-67, 2404-07, 2845-46. The State Board argues that the approval of all these recycling projects could starve the Los Angeles River of the wastewater flows necessary to support its beneficial uses. Waterkeeper itself[26] urged the State Board to not approve any applications for additional recycling on the Los Angeles River until it convened a workshop to discuss, among other things, establishment of a “base flow” for the River and “preservation and enhancement of the (potentially conflicting) beneficial uses of the [R]iver.” AR 3413. State Board Opp. at 25-26.

On November 8, 2017, the State Board held an informational session entitled “LA River Existing and Future Conditions: Instream Flow Needs.” AR 2681. The Regional Board, Department of Fish and Wildlife, and the cities of Los Angeles, Glendale, and Burbank made presentations. AR 2684-844. Thereafter, the State Board and the Regional Board initiated the River Flow Study at an estimated cost of at least $1.1 million. AR 1465-66. The River Flow Study will characterize the aquatic life and recreation uses in the Los Angeles River, quantify the flows needed to support those uses, model how various flow scenarios would affect those uses, and develop a set of flow recommendations. AR 1459-67. The project is expected to be completed by the end of 2020. The State Board argues that the River Flow Study’s recommendations will assist the State Board in assessing the four POTWs section 1211 petitions to ensure that they do not recycle too much water to the detriment of beneficial uses in the river that rely on the existing flows of treated wastewater. State Board Opp. at 26.

The River Flow Study does not demonstrate that the State Board is taking any action to prevent the waste or unreasonable use of wastewater from the POTWs. The River Flow Study concerns the beneficial uses of the POTWs’ discharges and is designed to provide insight into the relationship between flows and beneficial uses (wildlife, kayaking, recreation) for purposes of the public trust doctrine and cumulative impacts for CEQA. AR 314. The beneficial use of the discharges is a factor in the reasonableness analysis -- the River Flow Study would provide data for factors one (Other Beneficial Uses) and two (Excess Water Serves Beneficial Uses) of the seven factors in the State Board Imperial Decision-- but it cannot satisfy the State Board’s duty to consider waste and unreasonable use in the POTWs’ discharges. Waterkeeper correctly argues that even beneficial uses can be wasteful and unreasonable. Joslin, supra, 67 Cal.2d at 143 (Article X, section 2 “does not equate ‘beneficial use’ with ‘reasonable use.’”); Audubon, supra, 33 Cal.3d at 447; Light, supra, 226 Cal.App.4th at 1480 (reasonableness and public trust doctrine both impose potential limit on private uses of water).[27]

The River Flow Study is not a consideration of wastefulness or reasonableness of discharge from the four POTWs and is not an action taken to prevent such waste or unreasonable use.

g. The State Board’s Conservation Efforts

The State Board notes that the volume of wastewater discharged or recycled is a function of the volume of wastewater influent received by POTWs. The less water sent down the drain necessarily means that the POTWs will receive less influent and discharge less effluent. In 2018, the Legislature established a goal of reducing indoor water use by 20% and set a target of 55 gallons per day of indoor water use through 2025, thereafter dropping to 52.5 gallons per day. Water Code §§ 10608.20(a)(2), and (b)(2)(A), 10609.4(a). The Legislature also authorized the State Board to adopt new water use efficiency standards. Water Code §10609.4(b). When finalized and implemented, the State Board’s water use efficiency standards will result in less indoor water use and consequently less wastewater directed to the POTWs. State Board Opp. at 24.[28]

Conservation of the water supply 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.

h. Real Parties’ Actions

Both the State Board and Real Parties argue that the latter have made progress to reduce their effluent discharges and increase their recycling.

The State Board argues that the three inland POTWs have or plan to increase recycling to such a degree that the overriding present concern is that too much water may be recycled to the detriment of the resources in the Los Angeles River. While progress towards these goals may not be as fast as some might want, the cities’ actions and plans for increased recycling align with the State Board’s. State Board Opp. at 27.

Real Parties note that, by nature of their populations and location, they operate POTWs connected to some of California’s (and the world’s) largest wastewater collection and treatment systems. Minamide Decl. ¶6 (LASAN operates and maintains one of the world’s largest wastewater collection and treatment systems); De Ghetto Decl. ¶¶ 8-9, 14. It is not unusual that POTWs for large cities would discharge large amounts of effluent. The evidence demonstrates that all Real Parites have significantly reduced water demand through conservation and have increased recycled water use when feasible. Real Parties argue that they are in compliance both with the letter and spirit of state law and policy with respect to their discharge of wastewater and their use of recycled water. Real Parties Opp. at 23.

Specifically, Burbank has increased its use of recycled water by approximately 20% since 2016-17, with corresponding decreases in its wastewater discharges. In 2018, Burbank successfully obtained the State Board’s approval to decrease its wastewater discharges from the Burbank plant; the State Board found that Burbank’s project was “consistent with the purpose and will help California meet the goals of the Recycled Water Policy.” Currently, Burbank re-uses approximately 35% of its treated wastewater as recycled water. Burbank’s recycled water demand is projected to reach 3,500 afy within the next year, which constitutes between 36-44% of Burbank’s treated wastewater. In the future, Burbank expects recycled water to account for 19% of its total water supply. Wilson, ¶¶ 13, 17, 24, 30, 38, 45-46. Burbank also has aggressively pursued conservation efforts to reduce its water usage, realizing 45% water savings between 2005-2015. Wilson Decl. ¶¶ 19, 21. Real Parties Opp. at 23-24.

Glendale meets 7% of its water demands with recycled water. On average, Glendale’s share of the wastewater produced by the Glendale plant is 6,000-7,000 afy. With the State Board’s 2018 approval of Glendale’s wastewater change petition (AR 680-84), Glendale’s recycled water demand is projected to reach 2,400 AFY by 2023, which constitutes approximately 37% of Glendale’s share of the Glendale plant’s treated wastewater. This recycled water will serve approximately 10% of Glendale’s customers’ demands. De Ghetto Decl. ¶¶ 23-25, 27, 30, 35, 41-43. Glendale has also implemented numerous conservation efforts, including water waste prohibition ordinances, installing a complete “smart-meters” system, and online and application-based tools for customers to monitor and control water usage leak. As a result, Glendale customer demands have decreased 18% since 2013. De Ghetto Decl. ¶ 17-20, 27. Real Parties Opp. at 24.

On top of Los Angeles’ level of recycling at all of its POTWs – the Hyperion, Tillman, Glendale, and Terminal Island plants (AR 3392, 3400-37), Los Angeles’ Mayor pledged on February 21, 2019 that the city will recycle 100% of its wastewater by 2035. To meet this goal, improvements to the ocean-discharging Hyperion plant will cost in the billions of dollars over the next 15 years. Additional resources and capital commitments will be required for increasing recycling at Los Angeles’ other three plants. Minamide Decl. ¶¶ 8-32. Real Parties Opp. at 24-25.

By reducing overall demand through conservation and developing recycled water as a local supply, the Cities’ have made significant gains in reducing their reliance on imported water. Several notable obstacles have slowed and limited Real Parties’ abilities to increase their use of recycled water and reduce their wastewater discharge further, not the least of which is Waterkeeper’s own objections and litigation. Real Parties Opp. at 25.

Substantial further expansion in Real Parties’ use of recycled water will require direct potable reuse (DPR). Minamide Decl., ¶35; Wilson Decl., ¶ 61; De Ghetto Decl., ¶ 65. Critical knowledge gaps exist for direct potable reuse, and further necessary research is required. AR 7330. Assuming that the State Board adopts regulations, direct potable reuse will open up new abilities to recycle. Los Angeles projects that the Hyperion plant’s recycling with the inclusion of direct potable use will be 200,000 afy. AR 188. In 2018, after receiving funding from the State Board, Burbank finalized a plan which studied the feasibility of direct potable reuse in Burbank once regulations are promulgated. Wilson Decl., ¶ 36, Ex. B. Glendale anticipates using its remaining share of wastewater discharged from the Glendale plant for direct potable reuse. De Ghetto Decl., ¶26. Real Parties Opp. at 25-26.

Real Parties contend that there is no evidence that any of them are wasting water. Waterkeeper’s attempt to impose a duty on the State Board to investigate the POTWs’ permitted discharge based solely on the volume of such discharge fails to satisfy the good cause standard required by law. Real Parties Opp. at 23.

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. Real Parties put the cart before the horse when they argue that there is no evidence that they are wasting discharged wastewater. That is the issue the State Board is required to ascertain in the exercise of its expertise. The availability of direct potable reuse is obviously an important factor in the recycling of water and no doubt will be part of the State Board’s evaluation. But it is of little use to argue that the POTWs’ discharge need not be evaluated for reasonableness because Waterkeeper has not met a good cause standard, a standard that has nothing to do with the State Board’s independent duty.

As Waterkeeper argues, without an evaluation whether a waste and unreasonable use is occurring via the discharge at the POTWs, it is impossible to claim that any of Real Parties’ efforts prevents waste. The fundamental problem with Real Parties’ declarations is that none evaluates whether their discharge of wastewater constitutes a waste and unreasonable use. They also have made no binding commitment to recycle. Los Angeles states that its efforts to eliminate the average daily 230 mgd discharge of treated wastewater into the ocean at the Hyperion plant are proceeding “without a mandate from the state.” Minamide Decl., ¶11. Yet, Los Angeles describes this voluntary effort as a “pledge[]” and a “goal” which may be realized 15 years from now. Minamide Decl., ¶ 11, 36. Glendale also hedges that it “could re-use its remaining share” of the discharged wastewater from the Glendale plant at an unspecified point in the future. De Ghetto Decl., ¶26. Reply at 11.

Waterkeeper also points out the Real Parties’ declarations demonstrate the painfully slow pace of the voluntary municipal recycling efforts. Burbank projects that recycled water as a percentage of its long-term water supply will increase just 3%. Wilson Decl., ¶¶ 47, 23. Recycled water currently comprises just 7% of Glendale’s water supply. De Ghetto Decl., ¶¶ 24–25. Despite the Hyperion plant’s discharge of 230 mgd into the Santa Monica Bay, Los Angeles has no operative recycling permits. This huge volume is “lost to the ocean” and “wasted water”. De Ghetto Decl., ¶44; AR 6786, 7279.[29] Reply at 12.

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’s plant discharge may well continue past 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. Pet. Op. Br. at 17.

i. Conclusion

As Waterkeeper argues (Pet. Op. Br. at 10-11), the State Board and Real Parties assume that the State Board’s mere encouragement of water recycling will prevent wasteful or unreasonable use from the wastewater discharge of the four POTWs. 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. State Board Opp. at 16. Yet, the State Board admits that California is behind on its recycled water goals (AR 783, 2847), 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.

5. The Required Reasonable Use Analysis

“What may be a reasonable beneficial use, where water is present in excess of all needs, would not be a reasonable beneficial use in an area of great scarcity and great need. What is a beneficial use at one time may, because of changed conditions, become a waste of water at a later time”. Tulare Irrigation Dist. v. Lindsay-Strathmore Irrigation Dist., (1935) 3 Cal.2d 489, 567.

What must the State Board do? Waterkeeper argues that the State Board’s duty to prevent waste and unreasonable use requires that it (1) conduct an evaluation of the extent of waste and unreasonable use occurring at these four POTWs considering relevant factors, and (2) craft a remedy to prevent such waste and unreasonable use, as constitutionally and statutorily required, that is rationally related to the analysis in the first step. See Ridgecrest, supra, 130 Cal.App.4th at 1006. According to Waterkeepers, the State Board must articulate a rational connection between the facts found in step one, the solutions proposed in step two, and the constitutional and statutory mandate. See id. at 1006. Pet. Op. Br. at 5-6; Reply at 4-5.

Not quite. The first element argued by Waterkeeper is correct. The State Board must evaluate whether waste and unreasonable use is occurring at the four POTWs considering relevant factors. But the second element of remedy presumes that the State Board will find waste and unreasonable use and will impose a remedy. In reply, Waterkeeper admits that it cannot seek a specific remedy and requests that the State Board be compelled to fulfil its Article X, section 2 duty to evaluate the POTWs’ discharge and craft a remedy that is based on factual findings and is not arbitrary and capricious. Reply at 9.

The State Board argues that Waterkeeper’s entire case hinges on the assumption that the only way the State Board can carry out its duty under Article X, section 2 and section 275 is to conduct a waste and unreasonable use analysis for individual POTWs. Article X, section 2 and section 275 do not specify how waste and unreasonable use is to be prevented, and section 275 is open-ended by stating only that the State Board must only take “all appropriate proceedings” to prevent waste and unreasonable use. See R & P Growers Association. v. Agricultural Labor Relations Board, (1985) 168 Cal.App.3d 667. How the State Board prevents waste and unreasonable use is discretionary, and the State Board argues that it has discretion to address potential waste and unreasonable use from classes of dischargers systemically, just as it did, for example, by adopting regulations for how all vineyards will be permitted to divert water from the Russian River for frost protection. Light, supra, 226 Cal.App.4th at 1463. The State Board cites EDF I, supra, 20 Cal.3d at 327, for the point that decisions relating to Article X, section 2 and wastewater are best left to the State Board. State Board Opp. at 16-17.

EDF I does not support the State Board. This court’s ruling on demurrer (Dem. Ruling at 22) explained that the EDF I plaintiffs sought to compel a municipal utility district to build reclamation facilities under Article X, section 2 and section 100. 20 Cal. 3d at 332. The EDF I court required the plaintiffs to apply to the State Board first before seeking intervention of the court to prevent waste. Id. at 344. Waterkeeper has petitioned the State Board and now seeks judicial mandamus to compel the State Board to evaluate and prevent the ongoing waste and unreasonable use.

The State Board notes that the determination of how to address the potential wasteful and unreasonable discharge of effluent from POTWs is a complicated issue, mixing issues of public health, public financing, and public perception. See, e.g., EDF I, supra, 20 Cal.3d at 344 (“whether available economic resources should be devoted to wastewater reclamation or development of other water supplies” is basically a legislative decision appropriately addressed to the State Board).) The State Board argues that Waterkeeper cannot compel it to abandon its carrots and sticks approach and address the four POTWs’ potential waste and unreasonable use in the way Waterkeeper prefers. State Board Opp. at 17-19.

The problem with the State Board’s argument is severalfold. First, there is no evidence that the State Board has adopted a carrot and stick approach to POTW discharge. Second, the discharge from the four POTWs is so great that it cannot be included in a statewide class of POTWs. These general programs are not based on an understanding of the waste and unreasonable use occurring at the four POTWs and are not aimed at preventing the waste and unreasonable use at the POTWs. Third, the State Board’s argument puts the cart before the horse. The State Board cannot reasonably adopt such an approach without conducting an evaluation of the discharge as waste and unreasonable. The State Board admits it has conducted no analysis of the reasonableness of the discharges from the four POTWs, either collectively or individually. Having conducted no analysis, the State Board cannot demonstrate a rational connection 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 is has considered “all [or any] relevant factors.” Reply at 7.

Because the State Board has not undertaken to evaluate the extent of the waste and unreasonable use occurring at these four POTWs, it cannot claim to have fashioned solutions to those issues, and thus has not executed its Article X, section 2 duty. Reply at 11.

How must the State Board conduct its analysis? Waterkeeper argues that the State Board explained how to conduct a reasonable use analysis more than 35 years ago:

“[I]n determining the “reasonableness” of water usage . . . the law requires an examination of the ascertainable facts concerning such water usage and an evaluation of such facts in view of the increasing need for water conservation within California. Although each case must be evaluated on its own merits, prior court decisions, prior decisions of the Board, and several statutes provide guidance in evaluating water usage. . . .” State Board Imperial Decision, p. 23.

The State Board Imperial Decision listed seven factors for considering whether a use is wasteful or unreasonable: (1) other potential beneficial uses for the water; (2) whether the excess water now serves a reasonable and beneficial purpose; (3) the probable benefits of water savings; (4) the amount of water reasonably required for current use; (5) the amount and reasonableness of the cost of saving water; (6) whether the required methods of saving water are conventional and reasonable rather than extraordinary; and (7) the availability of a physical plan or solution. Id., pp. 24-29. Pet. Op. Br. at 4-5.

Waterkeeper contends that application of the State Board Imperial Decision factors demonstrates that the authorized use of hundreds of millions of gallons of wastewater for use as discharge is wasteful and unreasonable. Pet. Op. Br. at 6.

First, numerous beneficial uses for the POTWs wastewater have been identified, including recycling for golf course, landscape, and agricultural irrigation, commercial and municipal use, groundwater recharge, recreational impoundment, and vehicle washing. AR 2847. Virtually any potential beneficial use for recycled water would be superior to discharging secondary treated wastewater directly into the Pacific Ocean and tertiary treated water indirectly via the Los Angeles River. The State Board, the Regional Board, and Glendale recognize this. AR 821 (State Board finding that discharge to ocean should be minimized); AR 7279 (Regional Board conclusion that wastewater discharged and not recycled is wasted water); AR 2765 (Glendale finding that highly treated wastewater discharged to ocean is not maximum beneficial use). Pet. Op. Br. at 6.

Second, while the discharge serves a purpose of conveying waste, the huge volume serves no other reasonable or beneficial use, either in the Los Angeles River or in Santa Monica Bay. See AR 821, 7279. Pet. Op. Br. at 6.

Third, the economic, environmental, and other benefits of more efficient water use (including both recycling and conservation) are obvious. Recycled water serves as a hedge against the “effects of long term drought, climate change, and water supply uncertainty.” AR 900. Both Los Angeles and Glendale recognize the water security benefits of water conservation and recycling. AR 2769-70 (Los Angeles conservation study projects that by 2039 additional conservation will “supply” about 16% of water demands (by eliminating such demand)); AR 2766 (Glendale recognizes that increased use of recycled water fosters conservation of potable water that would otherwise supply non-potable uses). Dr. Mark Gold of UCLA estimates $7-10 billion dollars in net present value (2016 dollars) will be saved in the year 2035 if Los Angeles implements water supply efficiency projects, including recycling all of the Hyperion plant’s current discharge. AR 2811. Pet. Op. Br. at 6-7.

Fourth, Los Angeles has committed to ending such discharge from the Hyperion plant by 2035. AR 20, 188, 324. The State Board admits that such discharge is not the fullest beneficial use of that water resource. See AR 821. The River Flows Study should answer the question of what level of discharge would sustain the beneficial uses of the Los Angeles River, does not propose to consider what level of discharge is reasonable or would constitute waste or unreasonable use. See AR 1450-59. Even before the River Flows Study is completed, there is ample evidence that the River experiences higher base flows than historically, meaning that current discharge levels are well above that necessary to support beneficial uses of the River. AR 2781, 2802, 2805. Pet. Op. Br. at 7.

Fifth, the cost of reducing the POTWs’ discharge is reasonable, as evidenced by Los Angeles’ Hyperion plant plans and the Glendale and Burbank project to increase diversions of treated wastewater from the Los Angeles River to support increased recycling. AR 147-62, 1468, 2811, 2869. Pet. Op. Br. at 7.

Sixth, the technology to recycle the water discharged from the POTWs currently exists, and there is nothing extraordinary about such methods of saving water. Los Angeles does not apparently recycle or distribute any recycled water under its own permits for the Hyperion plant. Los Angeles’ discharges of treated wastewater into the ocean from the Hyperion plant (230 mgd) are over five times the volume of wastewater (35-37 mgd) that the city contractually sends to West Basin. AR 6, 7003. West Basin recycles this water under its own wastewater recycling permits and distributes the water to its customers. West Basin’s recycling program demonstrates that the technology for recycling secondary treated wastewater is not extraordinary and literally exists next door to the Hyperion plant. AR 7005, 7870. Glendale and Burbank already use recycled water for a modest portion of their water supplies, further demonstrating that the technology exists in general use. AR 2737, 2758. Pet. Op. Br. at 7-8.

Seventh, a physical plan or solution is available as demonstrated by the fact that Los Angeles has committed to ending ocean discharge from the Hyperion plant by 2035. AR 188, 324. It is also shown by Glendale’s and Burbank’s expansion of their recycled water distribution networks. AR 2745, 2762. Pet. Op. Br. at 8.

The State Board correctly responds that nothing in Article X, section 2 or section 100 requires it to apply the seven-factor analysis from the State Board Imperial Decision. The State Board has issued waste and unreasonable use orders after that decision which have not referred to the seven factors as a hard and fast test that must be used. See In the Matter of the Alleged Waste and Unreasonable Use by Hidden Lakes Estates Homeowners Assn., State Board Order WR 2012-0004, 2012 WL 528570 at *6 (noting that seven factors do not apply in every case, but they provide guidance). The State Board has discretion to consider any factors it deems appropriate under the circumstances when undertaking a waste and unreasonable use analysis. The State Board cites Center for Biological Diversity v. Dept. of Conservation, (2018) 26 Cal.App.5th 161 and AIDS Healthcare Foundation v. Los Angeles County Dept. of Health, (2011) 197 Cal.App.4th 693 and People ex rel. Becerra v. Super. Ct. (2018) 29 Cal.App.5th 486 for the point that mandamus will not lie to control how an agency exercises its discretion. Board Opp. at 17-19.

The court agrees, and so it ruled on demurrer that how the State Board performs its evaluation of the four POTWs’ discharge, and whether it involves enforcement actions, review of permit conditions, or more general regulatory action or administrative guidance, is within the State Board’s discretion. Dem. Ruling at 28 (State Board has “a variety of options to address the issue of waste and unreasonable use in the POTW’s discharge”). Whatever the State Board finds in its evaluation, it must explain its reasoning in exercising its discretion.

The court in Ridgecrest, supra,130 Cal.App.4th at 986, addressed this issue. Education Code section 47164, which required that, upon the request of a charter school for the use of school district facilities, the school district had a mandatory duty (with an inapplicable exception) to provide reasonably equivalent and contiguous facilities to the charter school, and the school district had discretion in how it provided such facilities to the charter school. Id. at 1003. The school district granted the petitioner charter school site locations with facilities that were miles apart and did not explain how it addressed the statute’s contiguous facility requirement. Id. at 1006.

The school district’s failure to explain frustrated review by both the trial and appellate courts. Id. at 1006. The Ridgecrest court noted that a court reviewing an agency action in mandamus “must ensure that an agency has considered all relevant factors, and has demonstrated a rational connection between those factors, the choice made, and the purposes of the enabling statute.” Id. at 1003. The court held that “[i]t follows that we cannot make this determination in the absence of a statement of reasons by the agency for its decision.” Id. at 1006-07. The Ridgecrest court directed the trial court to issue a writ of mandate requiring the school district on remand to provide an explanation “thorough enough, and factual enough, to permit effective review by the courts.” Id. at 1006-07. Pet. Op. Br. at 9-10.

Waterkeeper admits that it cannot request a specific remedy where the State Board has not engaged in any analysis of the extent of waste and unreasonable use occurring at these four POTWs. Waterkeeper seeks the State Board’s compliance with Article X, section 2, and sections 100 and 275 in regulating the Glendale, Tillman, Burbank, and Hyperion plants. While the State Board has discretion regarding how to prevent waste and unreasonable use, it may not refuse to conduct the necessary analysis at the outset and then claim that it has no further obligations. Dem. Ruling at 27-28. Reply at 5-6.

Waterkeeper states that it would welcome elimination of waste at the POTWs by regulation, as the State Board undertook for irrigators in the Russian River. Light, supra, 226 Cal.App.4th at 1463, 1484–5. Whatever means the State Board chooses “must be reasonably necessary to effectuate the purpose of the statute” and not arbitrary, capricious, or without substantial evidence to support the action. Id., at 1495. Thus, while “discharger specific” remedies may be appropriate for the State Board to implement, this issue is beyond the scope of the remedy Waterkeeper seeks. The issue of discharger specific versus more broadly applicable remedies is for the State Board to address in determining how to comply with its mandatory duty, after making the necessary factual findings regarding the scope of waste and unreasonable use. Waterkeeper only requests mandamus compelling the State Board to undertake the necessary analysis to consider all relevant factors, to support crafting a remedy based on the relevant factors. Such analysis would also ensure development of a thorough factual record to allow for judicial review of the action ultimately taken. Ridgecrest, supra, 130 Cal.App.4th at 1007. Reply at 9-11.

F. Conclusion

For decades, Californians have been warned of drought or the threat of drought. They have been asked to reduce water usage and many have taken that to heart by, for example, shortening their shower time, using low flow toilets, and reducing lawn sprinkler time. Public agencies have taken steps to compel reduced water usage by consumers – such as Glendale’s graduate water rate system for residential usage – and adopting conservation programs. Not long ago, the court had a case in which Los Angeles’ Department of Water and Power spent $500 million in rebates for homeowners to plant desert planting in lieu of grass in their yards. The benefits of this expenditure were dubious. The State Board is spending at least $1.1 million on the River Flow Study to ascertain whether beneficial uses of the Los Angeles River (kayaking, other recreation, and wildlife uses) will be adversely affected by reduction of the POTWs’ effluent.

Could these monies have been better spent on recycling the POTWs’ wastewater discharge? We cannot know until the State Board conducts an evaluation of the reasonableness/waste of the discharges. We do know that the California constitution prohibits unreasonable use of water and that recycling water is a high priority in California. 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 mgd of wastewater.

Waterkeeper’s Petitions are granted in part. The State Board must apply its expertise to evaluate the waste/unreasonable use of the four POTWs’ discharge. 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 between the factors considered, the choices made, and the purposes of Article X, section 2 and section 100.

The clerk is directed to issue separate judgments and writs for each Petition. Waterkeeper’s counsel is ordered to prepare the proposed judgments and writs of mandate, including a reasonable return date, serve them on counsel for the opposing parties for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgments and writs along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for August 20, 2020 at 9:30 a.m.


[1] Although the plant is owned jointly by Los Angeles and Glendale, for convenience it is referred to as the Glendale plant.

[2] Water Code section 13000 provides:

“The people of the state have a primary interest in the conservation, control, and utilization of the water resources of the state, and that the quality of all the waters of the state shall be protected for use and enjoyment by the people of the state. Activities and factors which may affect the quality of the waters of the state shall be regulated 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.

¶The health, safety and welfare of the people of the state requires that there be a statewide program for the control of the quality of all the waters of the state; that the state must be prepared to exercise its full power and jurisdiction to protect the quality of waters in the state from degradation originating inside or outside the boundaries of the state; that the waters of the state are increasingly influenced by interbasin water development projects and other statewide considerations; that factors of precipitation, topography, population, recreation, agriculture, industry and economic development vary from region to region within the state; and that the statewide program for water quality control can be most effectively administered regionally, within a framework of statewide coordination and policy.”

[3] “Recycled water” is water, which as a result of treatment of waste, is suitable for a direct beneficial use or a controlled use that would not otherwise occur…” Water Code §13050(n). “Reclaimed water” has the same meaning as “recycled water”. Water Code §26.

[4] Effluent discharges are measured in flow rates. These rates vary widely from year to year, and throughout the year, based on precipitation, water use, and conservation. One acre-foot of water is the amount of water required to cover one acre of land with one foot of water, or 325,851 gallons. An afy is a measure of such a flow in a year.

[5] Recycled water must meet certain water quality criteria. Water Code §§ 13520-21. The Department of Public Health (“DPH”) initially was charged with adopting uniform regulations -- known as “water recycling criteria” -- specifying the safe uses of recycled water. Water Code §§ 13520, 13521; 22 Cal. Code of Regulations (“CCR”) §§60303-309. In July 2014, the Legislature transferred these responsibilities to the State Board. Water Code §174(b); Health & Safety Code §116271. In transferring responsibility to the State Board, the Legislature intended “to provide for coordinated consideration of water rights, water quality, and safe and reliable drinking water.” Water Code §174(b).

[6] Real Parties argue that a discharge of wastewater is not a use of water, noting that all of Waterkeeper’s cited cases concerned a specific use of water or wastewater. Real Parties Reply at 11-12. The court disagrees. The discharge of wastewater is a use of water, just as allowing the drainage of fresh water into the Salton Sea is a use of water. See Elmore v. Imperial Irrigation District, (1984) 159 Cal.App.3d 185 (irrigation district had a mandatory duty to avoid wasting water by allowing fresh water to drain into the Salton Sea). Moreover, as Waterkeeper’s counsel pointed out at the September 3, 2019 hearing, a section 1211 petition to reduce the amount of wastewater discharge is a requested change in use.

[7] At the August 8, 2019 hearing, Respondents counsel argued that Water Code section 1050 states that Division 2 (water rights) complies with Article X, section 2. More accurately, Water Code section 1050 states that Division 2 is declared to be in furtherance of Article X, section 2.

[8] Waterkeeper purports to rely on the legislative history and statutory amendments to section 275 by referring to its petitions. Opp. at 19. This is an improper attempt to incorporate by reference and potentially to exceed page limits, and therefore has been disregarded.

[9] Respondents note that section 100, adopted in l943, announced the Legislature’s general state policy regarding the use of water. The statute parallels the language in Article X, section 2: “The general welfare requires that the waste or unreasonable use or unreasonable method of use of water be prevented ....” §100. Respondents’ argument that section 100 does not impose a mandatory duty on the State Board to prevent waste and unreasonable use is rejected for the same reasons that Article X, section 2 imposes such a duty. See Dem. at 28.

[10] The other side of the Article X, section 2 duty is to ensure the beneficial use of water, and the State Board’s public workshop shows that the waste and beneficial use of the POTWs’ wastewater must be considered together.

[11] Although required only by logic and not by law, the court believes this determination is consistent with its earlier decision in Wishtoyo Foundation v. State Water Resources Board, (“Wishtoyo II”) BS163728 in which the court held that the State Board has a constitutional duty under Article X, section 2 to prevent waste, but it did not abuse its discretion in approving a statewide WRR that serves the purpose of regulating the use of recycled water by producers, distributors, and users consistent with criteria for the purpose of ensuring water quality. The WRR was not a water rights permit (it was a water quality permit), the waste treatment plant owners who produce recycled water had the right to use the recycled water, and while the State Board had authority to regulate the use of recycled water to prevent waste, it had no general duty to issue broad-ranging reasonable use requirements for recycled water. Wishtoyo II is distinguishable because, while the State Board could reasonably decide that the general regulation of recycled water usage to prevent waste should be approached cautiously, that is not true for the specific unreasonable use of wastewater here.

[12] The court did not cite statements of fact that it could not verify. However, the statements lacking cites appear to be undisputed.

[13] The court has not set forth the facts in Real Parties’ declarations in detail because they mostly concern Real Parties’ water supply demand, their actions to conserve water, and their actions recycle wastewater, not the State Board’s actions. While relevant, these actions are not controlling of the State Board’s duties.

Real Parties request judicial notice of the following documents attached to the Minamide, Wilson, and De Ghetto declarations: (1) Los Angeles Department of Water and Power, Memorandum of Understanding with the Los Angeles Department of Public Works Bureau of Sanitation Regarding Recycled Water from the Hyperion Water Reclamation Plant, dated March 10, 2020 (Minamide Ex. A); (2) Eric Garcetti, Mayor of City of Los Angeles, Executive Directive No. 25, L.A.’s Green New Deal: Leading by Example, dated February 10, 2020 (Minamide Ex. B); (3) Eric Garcetti, Mayor of City of Los Angeles, Executive Directive No. 5, Emergency Drought Response – Creating a Water Wise City, dated October 14, 2014 (Minamide Ex. C); (4) California Regional Water Quality Control Board, Los Angeles Region, Order No. R4-2008-0040, Amending Waste Discharge Requirements for (City of Los Angeles) Los Angeles-Glendale Water Reclamation Plant, Order No. R4-2007-0006 (File No. 68-085) and (City of Los Angeles) Donald C. Tillman Water Reclamation Plant, Order No. R4-2007-0008 (File No. 70- 177), adopted on July 10, 2008 (Minamide Ex. D); (5) California Regional Water Quality Control Board, Los Angeles Region, Order No. R4-2007-0008 (File No. 70-117), Waste Discharge Requirements for Title 22 Recycled Water Issued to City of Los Angeles (Donald C. Tillman Water Reclamation Plant), as amended January 11, 2007 (also Minamide Ex. D); (6) California Regional Water Quality Control Board, Los Angeles Region, Order No. R4-2007-0006 (File No. 68-85), Waste Discharge Requirements for Title 22 Recycled Water Issued to City of Los Angeles (Los Angeles-Glendale Water Reclamation Plant), as amended January 11, 2007 (Minamide Ex. E); (7) California Regional Water Quality Control Board, Los Angeles Region, Order No. R4-2011-0035 Amending Order No. R4-2007-0007 (File No. 68-085), Water Recycling Requirements for Title 22 Recycled Water Issued to City of Los Angeles (Los Angeles-Glendale Water Reclamation Plant), adopted on February 3, 2011 (Minamide Ex. F); (8) California Regional Water Quality Control Board, Los Angeles Region, Order No. R4-2011-0032 Amending Order No. R4-2007-0009 (File No. 70-117), Water Recycling Requirements for Title 22 Recycled Water Issued to City of Los Angeles (Donald C. Tillman Water Reclamation Plant), adopted on February 3, 2011 (Minamide Ex. G); (9) California Regional Water Quality Control Board, Los Angeles Region, Order No. R4-2016-0334 (File No. 97-208), Waste Discharge Requirements and Water Recycling Requirements Issued to City of Los Angeles Department of Public Works, City of Los Angeles Department of Water and Power, Los Angeles County Department of Public Works, Terminal Island Water Reclamation Plant, Harbor Water Recycling Project – Dominguez Gap Barrier Project, adopted on October 13, 2016 (Minamide Ex. H); (10) City of Burbank, 2010 Recycled Water Master Plan, dated October 2010 (Wilson Ex. A); (11) City of Burbank, Burbank Water and Power Potable Reuse Facilities Plan Final Report, dated November 2018 (Wilson Ex. B); (12) Richard Wilson, Assistant General Manager, City of Burbank Water & Power, 2019 Annual Report to State Water Resources Control Board for Wastewater Change Petitions WW0019 and WW0091, dated April 22, 2020 (Wilson Ex. C); and (13) Raja Takidin, City of Glendale, Glendale Water & Power, Glendale Wastewater Petition WW0097 – Annual Report, dated May 13, 2020 (De Ghetto Ex. A).

Waterkeeper does not dispute that these documents are all generally subject to judicial notice if relevant. Waterkeeper also did not object to the authentication of these documents in Real Parties supporting declarations. Waterkeeper opposes the request on the grounds that the documents are irrelevant extra-record evidence that should have been included in the Administrative Record stipulated to by the parties. See RJN Opp. As Real Parties correctly note, there is no administrative record for this type of traditional mandamus and the parties’ stipulation to the authenticity and admissibility of the “record” does not preclude inclusion of additional evidence through a request for judicial notice. RJN Reply at 3-5. For these reasons, the requests are granted. Evid. Code §452(c).

[14] Waterkeeper suggests that both the State Board and Real Parties were required to make a motion to reconsider. CCP §1008(b). Reply at 2, n.2. Not so. They may both ask the court to change its mind about the State Board’s duty and require proof of the Petition’s allegations.

[15] Real Parties wrongly cite Collins, supra, 41 Cal.App.5th at 915-16, as denying mandamus for constitutional equal access to education and equal protection claims because the manner in which the State discharged its constitutional duty “is a highly discretionary area and one not broadly amenable to a writ designed to dictate specific conduct.” Real Parties Opp. at 17/18. In fact, Collins upheld the trial court’s denial of mandamus for the equal access claim, but it reversed on the equal protection mandamus claim. Collins, supra, 41 Cal.App.5th at 917, 919, 921. Real Parties also cite Kahn v. Los Angeles City Employees’ Retirement System, (2010) 187 Cal.App.4th 98, as reversing the trial court’s grant of mandamus because there was no specific statutory mandate, but the case was based solely on whether the agency’s statutory interpretation was arbitrary and capricious, not its ministerial duty.

[16] All of Waterkeeper’s citations on this issue are to its own briefs in the record and therefore are not supporting facts.

[17] Real Parties argue that enforcement of the reasonable use doctrine at the point of discharge where a POTW has no other use for the wastewater – literally, at the tail end of the pipeline – is the wrong place to incentivize recycled water use. Real Parties Opp. at 21-22. This also is an issue that should be raised initially before the State Board. Moreover, as Waterkeeper replies, neither Article X, section 2 nor the Water Code exempts either end of the pipe from the prohibition on wasteful or unreasonable use. Waste is waste, and the act of wasteful use becomes irreversible upon discharge into the Pacific Ocean. Reply at 3.

[18] See e.g., Water Code §§ 13512 (declaring Legislature’s intention to take all possible steps to encourage development of water recycling facilities), 13515 (authorizing the State Board to provide loans for the investigation and for development of water reclamation facilities), 13527 (granting priority financial assistant to recycled water facilities), 13560 (encouraging development of potable reuse), and 13577 (establishing statewide recycling goal). See also AR 564, 786.

[19] See e.g., Water Code §§ §§ 10004 (directing that California Water Plan include recycled water), 10531 (declaring intention to encourage local water suppliers to diversify their water supply portfolios), 10633 (requiring urban water providers to evaluate the potential for the use of recycled water).

[20] See e.g., Water Code §13523 (regulating use of recycled water as necessary to protect the public health, safety and welfare).

[21] Waterkeeper points out that this assertion is technically incorrect. Water Code section 13550 states that using potable water when recycled water of sufficient quality is available is per se waste. Reply at 3. The inference is that recycled water must be used in that instance.

[22] After the POTWs’ permits were issued, regulations permitting the use of recycled water to augment surface water supplies were adopted in March 2018. 22 C.C.R. §60320.300 et seq.; AR 2452-505. Regulations permitting direct potable reuse (DPR) are not anticipated to be adopted for several years.

[23] By comparison, Los Angeles imports about 250,000 afy from Mono Lake tributaries and the Owens Valley. AR 136.

[24] Waterkeeper suggests that the State Board could fulfill its mandatory duty if it exercised its discretion to amend the Recycled Water Policy to include binding targets and timelines, along with findings regarding the reasonableness and waste of discharging wastewater into marine waters. Pet. Op. Br. at 12, n.8. The court has no opinion on how the State Board should fulfill its duty.

[25] The section 1211 change petition process is focused on public trust resources in rivers and consistency with various State Board policies. The process does not apply to discharges at the Hyperion plant because it does not reduce flow in the Los Angeles River. Water Code §1211. AR 682-83, 2406. Section 1211 change petitions qualify as projects subject to CEQA. The municipality proposing the reduced flow change in use is typically the CEQA lead agency and the State Board is a responsible agency.

[26] In 2017, Glendale filed a section 1211 change petition to recycle an additional 3,500 afy. AR 680-81. Contrary to its position in this case, Waterkeeper protested Glendale’s request to recycle more water. AR 3412-14. Waterkeeper sued Glendale to prevent it from recycling water and settled the case on the condition that Glendale slow its increased production of recycled water. AR 740.1. The State Board ultimately approved Glendale’s request to increase its recycling capacity in the phases proposed by Waterkeeper. AR 680-98. State Board Opp. at 25.

[27] This is an issue committed to the State Board’s expertise. Given the state’s strong policy of encouraging recycling, it is not at all clear that kayaking, other recreational use, or wildlife use of the Los Angeles River should have any impact on reducing the amount of POTWs’ discharge by recycling.

[28] The State Board also provides documents related to economic analysis, historical surveys of water and recycled water use, documents authored by Waterkeeper, documents generated by the County of Los Angeles, and surveys by regional boards in Los Angeles and other regions. None of these documents is specific to the four POTWs, and none shows that the State Board has evaluated and is preventing the waste or unreasonable use of the discharge authorized by the WDRs.

[29] The only reuse of wastewater at the Hyperion plant occurs internally to the Hyperion facility (11 mgd) and contractually to West Basin for recycling under West Basin’s permits. AR 7005, 7281, 7870. Thus, 230 mgd (84%) of the 267 mgd of the Hyperion plant’s wastewater is discharged directly into the Pacific Ocean. AR 6, 7003. Pet. Op. Br. at 15-16.

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