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Salmon and Grapes May Not Mix: Will a New Lawsuit Impact Northern California's Agriculture Industry?

By Bruce S. Flushman

[Originally published as a Wendel Rosen Client Update, February 6, 2009.]

According to claims in a California state court lawsuit filed February 4, 2009, by a coalition of environmental and fishing groups, the State Water Resources Control Board and North Coast Regional Water Quality Control Board violated both state statutes and the public trust doctrine by their failure to require the clean up of many Northern California waterways. 

In this case, the Plaintiffs argue the Boards did not properly implement the Total Maximum Daily Load (TMDL) Program required by The Federal Water Pollution Control Act (aka the Clean Water Act) and the state Porter-Cologne Water Quality Control Act. The TMDL program is intended to protect impaired waterways.  The program assesses pollution problems and specifies load allocations for various contributing sources in order to identify reductions necessary to implement the applicable water quality standards established by the Boards for these waterways. 

The lawsuit, jointly filed by The Sierra Club, Earthjustice and the Pacific Coast Federation of Fishermen's Associations, claims the State and Regional Boards failed to adopt TMDLs that protect water quality and provide habitat for the fish, ignoring laws (and the public trust doctrine) aimed at guaranteeing clean water in the North Coast streams for endangered chinook salmon, coho salmon and steelhead trout.  The Plaintiffs claim the failure of the State and Regional Boards to develop or implement TMDLs left many navigable rivers and streams impaired by pollutants such as sediment, temperature, and turbidity.

On the flip side, if the Boards were to meet the strict standards asserted by the Plaintiffs, there could be serious impacts to California's agriculture, viticulture and dairy industries throughout the North Coast region.  Changes in grading, pesticide use, or harvesting methods could ultimately be required to meet TMDLs. 

The State agencies defending the lawsuit do not operate the facilities that may eventually be subjected to increased regulation as a result of this suit. Consequently, landowners and business operators from these industries will want to follow this suit closely, since the impacts to their business could be high.  A win for the coalition might ultimately result in stricter regulatory standards, increased reporting requirements, or increased costs of operation and production.