Key Points

• Recycled water is an important tool in solving California’s long-term water supply problems.
• But when permitting discharges from wastewater treatment facilities, neither the State Water Resources Control Board nor Regional Water Quality Control Boards have a duty to require that water discharged from treatment plants be recycled or reused.

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Wet winters help, but the risk of drought remains as California’s water supplies are inherently variable. Given that ever-present uncertainty, recycled wastewater is an increasingly valuable source of supply. So must the State Water Resources Control Board require wastewater treatment facilities recycle and reuse treated wastewater, which they may otherwise discharge into rivers and the Pacific Ocean? In Los Angeles Waterkeeper v. State Water Resources Control Board, the Second District Court of Appeal held no such requirement exists.

Los Angeles Waterkeeper challenged certain Regional Water Quality Control Board permits under the Clean Water Act for four southern California wastewater treatment facilities. Each facility recycles and reuses a portion—but not all—of water discharged. The rest is discharged into the Los Angeles River, its tributaries, and the Pacific Ocean. Waterkeeper argued that the Regional Board should have considered requirements under the California Constitution and Water Code that all waters in California “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.” These laws, Waterkeeper claimed, required the Regional Board to consider whether the facilities should beneficially reuse that water.

The Second District held that Waterkeeper’s claim lacked merit for two main reasons. First, the Regional Board regulates water quality—not water rights or water use. Only the State Board regulates water rights and their corresponding use. And as between these agencies, only the State Board has jurisdiction over whether any given use is put to a “beneficial use.”

Second, the California Constitution and Water Code do not expressly require that wastewater treatment facilities recycle their water. Nor does the State Board have a duty to investigate or prevent every alleged unreasonable use of water. The Court thus determined that the State Board’s duty to investigate and prohibit the unreasonable use of water is “highly discretionary.” The State Board simply lacks resources to investigate and prevent all unreasonable water uses. So it must prioritize some uses over others. And as a practical necessity, the State Board cannot prioritize uses without significant discretion. Under that standard, the only way that the Waterkeeper could have compelled the State Board to act is if the State Board had taken no action to prevent the waste of water in California. (A claim that Waterkeeper did not make, since it only focused on how the State Board has not prevented the unreasonable use of treated wastewater at certain treatment facilities.)

But the Court carefully explained this discretion’s limits. The situation is different, the Court noted, when the State Board acts to prevent waste by issuing regulations or placing conditions on particular water users. The Water Code requires then that the State Board consider “all relevant factors” before acting. And the State Board must “rationally connect” those factors to its action. Should the State Board either disregard those factors or fail to rationally connect its action to those factors, then it will have abused its discretion and courts may compel it to act in accordance with law.

The Second District’s opinion is a helpful reminder about the limits of California water laws. The State Board and regional boards can act only within the bounds of their respective jurisdiction, and the State Board’s actions on waste and unreasonable use determinations are discretionary. Given the laws’ limits, we continue to track proposed legislation that address the State Board’s authority and that otherwise may change California’s water laws.

If you have any questions or concerns about how these actions affect you, please contact Sean Herman or the Hanson Bridgett Water Law Group.