Judge Frawley’s decision on South Delta salinity and Tracy discharge

My apologies for the lack of new posts here. I recently started working on a water-related project that I hope to share here in the future, but it will take some time to complete. In the meantime, I will try to catch up on news and be better about updating.

Last month Judge Timothy Frawley (at Sacramento Superior Court) issued his final decision regarding the City of Tracy’s wastewater discharge permit, the latest chapter in the long discussion of water quality in the Delta. Salinity objectives have long been established to maintain a salinity level suitable for agriculture: an April-August objective of 0.7 mmhos/cm electrical conductivity (EC), and a September-March objective of 1.0 mmhos/cm, measured at Vernalis and three interior stations in the South Delta. Tracy’s wastewater plant discharges treated effluent to the Old River at a location about four miles upstream of the nearest monitoring station (located at Tracy Road Bridge), and the salinity of that effluent (ranging from 1.0 to 2.4 mmhos/cm) exceeds these objectives. The plant has been expanded over the years, and another expansion is planned to increase treatment capacity from 9 to 16 million gallons per day.  The Old River in this area, on average, already bumps up against the salinity objective, meaning there is little assimilative capacity, i.e. capacity to dilute the Tracy plant’s saltier discharge.

Nonetheless, the Central Valley Regional Board issued an NPDES permit that excused Tracy from taking any serious steps (construction of a reverse osmosis plant) to bring its salinity in line with the South Delta objectives, as long as Tracy complied with the Regional Board’s lenient requirement to follow up with a “salinity plan.” CSPA appealed the permit, and in 2009 the State Water Resources Control Board rejected the permit, ordering that a revised permit be prepared consistent with the South Delta objectives (PDF). Tracy challenged the order, and now we have Frawley’s decision (PDF).

Frawley distributed winning and losing points to both Tracy and the State Board. For example, even though he found that the State Board did not establish the salinity objectives correctly, he did not actually invalidate these longstanding objectives that have been part of the conversation since 1978 — recognizing “the environmental harm that could occur if the water quality criteria were to be invalidated immediately.”  (Decision, p. 35.)  Instead, he basically maintained the status quo by halting the State Board’s enforcement of these objectives against Tracy and other municipal dischargers.  Tracy won this battle, but the State Board may still win the war.  It could eventually hold Tracy responsible after jumping through the right analytical hoops — in particular, evaluating the economic costs of requiring that municipal dischargers meet the salinity objectives.  (For more information, see Water Code § 13241.)

Courtesy of CH2M HILL.

One aspect of the decision I found interesting was how Frawley dances around what appears to be his personal opinion of the situation.  To be fair, the ruling does not award either side a total victory. Yet at least the immediate victory belongs to Tracy, and after reading the ruling, I cannot help but draw the conclusion that Judge Frawley’s overall sympathies are with Tracy, based on certain passages:

(1)  Frawley repeatedly emphasized that in holding Tracy responsible, the State Board fundamentally changed its approach to water quality in the South Delta.  Whereas the State Board had previously focused on the Bureau of Reclamation releasing New Melones water to reduce salinity, Frawley saw the Tracy discussion as a shift away from dilution and toward a new direction that reduces in-Delta municipal pollution.  The implication is that the shift caught Tracy by surprise, and that Tracy’s surprise was logical under the circumstances.  Frawley verged toward a criticism of the State Board when he wrote that this new direction could be “so fundamentally different that it constitutes a de facto revision … of the objective itself.”  (Decision, p. 25.)  But then he pointed out that this conclusion, which ostensibly represents his personal opinion, conflicts with legal precedent.  Frawley, to his credit, did follow the precedent; and whether it was to frame the issue for a possible appeal or for another reason, it was interesting that he devoted space to express sympathy for Tracy in a way that was not strictly necessary to render a decision.

(2)  A required component of water quality control plans is a “program of implementation.”  The 2006 WQCP for the Bay-Delta included a program of implementation that Frawley originally decided was satisfactory.  But for the final decision he changed his mind in Tracy’s favor, finding the discussion of municipal dischargers to be inadequate.  He then stated what appears to be, given the lack of citations, a new standard of his own invention.  He required that more specific details be included when new entities (here, municipal dischargers) are held responsible for meeting water quality objectives.  This requirement might not be all that burdensome, but I am not convinced that certain parts of a plan should be held to a higher standard of specificity than other parts.  In this case, the 2006 WQCP does lack detail about the responsibilities of municipal dischargers, but that lack of detail is not necessarily surprising because NPDES permits are typically the realm of the regional boards.

(3)  Frawley criticized the State Board for its poor enforcement of salinity objectives, even though the state and federal project permits are conditioned on achieving these objectives.  He then drew in DWR and the Bureau as well, while offering a defense on behalf of Tracy:

The salt in Tracy’s discharge may make compliance for DWR/USBR more difficult, but that does not necessarily mean Tracy is attempting to shirk its responsibility for the salinity problem in the southern Delta.  After all, one could argue that the reason there is no assimilative capacity in the Delta is because DWR/USBR have shirked their responsibility to release sufficient fresh water from New Melones Reservoir. […] Tracy might argue that it is the victim here — because it is being requested to reduce its salt loading so that DWR/USBR may export more water by means of the SWP/CVP.

(Decision, pp. 39-40.)  Frawley shied away from resolving who did or didn’t shirk their responsibility.  But by devoting a few paragraphs to a policy discussion that he basically admitted was tangential to the legal issue at hand, he seems to have seized another opportunity to scold the State Board while expressing sympathy for Tracy.

Frawley’s decision raises the broader question of what balance to strike when implementing salinity objectives, which will be something to consider as the State Board is in the process of evaluating and potentially revising the objectives.  More discussion of this in the next post.