Case 2:20-cv-01111-KJM-EFB Document 1 Filed 06/02/20 Page 1 of 33
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`ANTHONY M. BARNES (Bar No. 199048)
`JASON R. FLANDERS (Bar No. 238007)
`Email: amb@atalawgroup.com
`AQUA TERRA AERIS LAW GROUP LLP
`490 43rd Street, Suite 108
`Oakland, CA 94609
`Phone: (415) 326-3173
`
`Attorneys for Plaintiff
`CALIFORNIA SPORTFISHING PROTECTION ALLIANCE
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF CALIFORNIA
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`Civil Case No.:
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF AND
`CIVIL PENALTIES
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`(Federal Water Pollution Control Act, 33
`U.S.C. §§ 1251 et seq.)
`
`Plaintiff,
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`v.
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`Defendant.
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`CALIFORNIA SPORTFISHING PROTECTION
`ALLIANCE, a non-profit corporation,
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`MCLANE FOODSERVICE, INC., a Texas
`corporation,
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`CALIFORNIA SPORTFISHING PROTECTION ALLIANCE (“CSPA” or “Plaintiff”), by and
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`through its counsel, hereby alleges:
`JURISDICTION AND VENUE
`I.
`This is a civil suit brought under the citizen suit enforcement provision of the Federal
`1.
`Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq. (“Clean Water Act” or “CWA”). See 33 U.S.C.
`§ 1365. This Court has subject matter jurisdiction over the parties and this action pursuant to 33 U.S.C.
`§ 1365(a)(1) and 28 U.S.C. §§ 1331 and 2201 (an action for declaratory and injunctive relief arising
`under the Constitution and laws of the United States).
`On February 10, 2020, CSPA issued a 60-day notice letter (“Notice Letter”) to McLane
`2.
`Foodservice, Inc. (“Defendant” or “McLane”), for the industrial facility in Tracy, California under its
`control. The Notice Letter informed Defendant of its violations of California’s General Permit for
`Complaint for Declaratory and Injunctive
`1
`and Civil Penalties Relief
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`Discharges of Storm Water Associated with Industrial Activities (National Pollutant Discharge
`Elimination System (NPDES) General Permit No. CAS000001, State Water Resources Control Board
`Water Quality Order No. 97-03-DWQ) (“1997 Permit”), as superseded by Order No. 2014-0057-DWQ
`and amended by Order No. 2015-0122 –DWQ (“2015 Permit”) (collectively, hereinafter referred to as
`the “Storm Water Permit”), recently amended but not yet adopted Order No. 20XX-XXX-DWQ
`incorporating: 1) Federal Sufficiently Sensitive Test Method Ruling; 2) TMDL Implementation
`Requirements; and 3) Statewide Compliance Options Incentivizing On-Site or Regional Storm Water
`Capture and Use (“2018 Permit”), and the Clean Water Act at McLane ’s large-scale industrial
`fabrication and construction facility located at 800 E. Pescadero Avenue, Tracy, CA 95304 with Waste
`Discharger Identification Number (WDID) 5S39I020697(“McLane Facility” or “Facility”). The Notice
`Letter informed Defendant of CSPA’s intent to file suit against Defendant to enforce the Storm Water
`Permit and the Clean Water Act.
`The Notice Letter was sent to Defendant’s current President and Chief Executive Officer,
`3.
`William G. Rosier, registered agent for service of process, CT Corporation System, and the General
`Manager Dan Ball, as required by 40 C.F.R. § 135.2(a)(2). The Notice Letter was also sent to the
`Administrator of the United States Environmental Protection Agency (“EPA”), the Administrator of
`EPA Region IX, the Executive Director of the State Water Resources Control Board (“State Board”),
`and the Executive Officer of the Regional Water Quality Control Board, Central Valley Region,
`(“Regional Board”) as required by Section 505(b) of the CWA, 33 U.S.C. § 1365(b)(1)(A). The Notice
`Letter is attached hereto as Exhibit A and is incorporated herein by reference.
`More than sixty (60) days have passed since the Notice Letter was served on the
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`Defendant and the State and Federal agencies. CSPA is informed and believes, and thereon alleges, that
`neither the EPA nor the State of California has commenced or is diligently prosecuting an action to
`redress the violations alleged in the Notice Letter and in this complaint. See 33 U.S.C. § 1365(b)(1)(B).
`This action is not barred by any prior administrative penalty under Section 309(g) of the CWA, 33
`U.S.C. § 1319(g).
`Venue is proper in the Eastern District of California pursuant to Section 505(c)(1) of the
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`CWA, 33 U.S.C. § 1365(c)(1), because the sources of the violations are located within this judicial
`Complaint for Declaratory and Injunctive
`2
`and Civil Penalties Relief
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`district.
`II.
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`INTRODUCTION
`With every rainfall event, hundreds of millions of gallons of polluted rainwater,
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`originating from industrial operations such as the Facility referenced herein, pour into the storm drains
`and local waterways. The consensus among regulatory agencies and water quality specialists is that
`storm water pollution accounts for more than half of the total pollution entering marine and river
`environments each year. These surface waters, known as Receiving Waters, are ecologically sensitive
`areas. Although pollution and habitat destruction have drastically diminished once abundant and varied
`fisheries, these waters are still essential habitat for dozens of fish and bird species as well as macro-
`invertebrate and invertebrate species. Storm water and non-storm water contain sediment, heavy metals,
`such as aluminum, iron, chromium, copper, lead, mercury, nickel, and zinc, as well as, high
`concentrations of nitrate and nitrite, and other pollutants. Exposure to polluted storm water harms the
`special aesthetic and recreational significance that the surface waters have for people in the surrounding
`communities. The public’s use of the surface waters exposes many people to toxic metals and other
`contaminants in storm water and non-storm water discharges. Non-contact recreational and aesthetic
`opportunities, such as wildlife observation, are also impaired by polluted discharges to the Receiving
`Waters.
`High concentrations of total suspended solids (“TSS”) degrade optical water quality by
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`reducing water clarity and decreasing light available to support photosynthesis. TSS has been shown to
`alter predator-prey relationships (for example, turbid water may make it difficult for fish to hunt prey).
`Deposited solids alter fish habitat, aquatic plants, and benthic organisms. TSS can also be harmful to
`aquatic life because numerous pollutants, including metals and polycyclic aromatic hydrocarbons
`(“PAHs”), are absorbed onto TSS. Thus, higher concentrations of TSS result in higher concentrations of
`toxins associated with those sediments. Inorganic sediments, including settleable matter and suspended
`solids, have been shown to negatively impact species richness, diversity, and total biomass of filter
`feeding aquatic organisms on bottom surfaces.
`Storm water discharged with high pH can damage the gills and skin of aquatic organisms
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`and cause death at levels above 10 standard units. The pH scale is logarithmic and the solubility of a
`Complaint for Declaratory and Injunctive
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`and Civil Penalties Relief
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`substance varies as a function of the pH of a solution. A one-whole-unit change in SU represents a
`tenfold increase or decrease in ion concentration. If the pH of water is too high or too low, the aquatic
`organisms living within it will become stressed or die.
`This complaint seeks a declaratory judgment, injunctive relief, the imposition of civil
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`penalties, and the award of costs, including attorney and expert witness fees, for Defendant’s substantive
`and procedural violations of the Storm Water Permit and the Clean Water Act resulting from
`Defendant’s operations at the McLane Facility.1
`CSPA specifically alleges violations regarding Defendant’s discharge of pollutants from
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`the Facility into waters of the United States; violations of the filing, monitoring and reporting, and best
`management practice requirements; and violations of other procedural and substantive requirements of
`the Storm Water Permit and the Clean Water Act, are ongoing and continuous.
`PARTIES
`III.
` California Sportfishing Protection Alliance
`A.
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`CSPA is a California non-profit 501(c)(3) public benefit conservation and research
`organization with its principal place of business in Stockton, California. CSPA’s organizational purpose
`is the protection, preservation, and enhancement of fisheries and associated aquatic and riparian
`ecosystems of California’s waterways, including the greater Sacramento-San Joaquin River Delta
`(“Delta”), Sugar Cut, the Old River and Clifton Court Forebay the Receiving Waters herein. This
`mission is implemented through active participation in water rights and water quality processes,
`education and organization of the fishing community, restoration efforts, and vigorous enforcement of
`environmental laws enacted to protect fisheries, habitat and water quality. Members of CSPA use and
`enjoy California’s numerous rivers, creeks and waterways, including Sugar Cut, the Old River and
`Clifton Court Forebay, for recreational and scientific activities such as viewing and enjoying wildlife,
`boating, fishing, birdwatching, golfing, engaging in scientific study to expand their understanding of
`various species and habitat health. CSPA’s members derive significant and ongoing use and enjoyment
`from the aesthetic, recreational, and conservation benefits of the waters of the greater Sacramento-San
`
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`1 The Facility is fully described in Section V below.
`Complaint for Declaratory and Injunctive
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`and Civil Penalties Relief
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`Joaquin River Delta.
`CSPA has approximately 2,000 members who live, recreate and work in and around
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`waters of the State of California, including those in western San Joaquin County such as Clifton Court
`Forebay, Sugar Cut and the Old River. CSPA is dedicated to the preservation, protection, and defense of
`the environment, and the wildlife and the natural resources of all waters of California. To further these
`goals, CSPA actively seeks federal and state agency implementation of the Clean Water Act and other
`laws and, where necessary, directly initiates citizen enforcement. As referenced in above, members of
`CSPA use and enjoy the Receiving Waters herein into which Defendant have caused, are causing, and
`will continue to cause, pollutants to be discharged. Defendant’s discharges of pollutants threaten or
`impair each of those uses or contribute to such threats and impairments. Thus, the interests of CSPA’s
`members have been, are being, and will continue to be adversely affected by Defendant’s ongoing
`failure to comply with the Clean Water Act and/or the Storm Water Permit. The relief sought herein will
`redress the harms to Plaintiff caused by Defendant’s activities.
`Defendant’s failure to comply with the procedural and substantive requirements of the
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`Storm Water Permit and/or the Clean Water Act, including but not limited to Defendant’s discharge of
`polluted stormwater and non-stormwater from the McLane Facility, negatively impacts and impairs
`CSPA’s members’ use and enjoyment of these waters.
`Continuing commission of the acts and omissions alleged herein will irreparably harm
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`CSPA’s members, for which harm they have no plain, speedy, or adequate remedy at law.
`The Owners and/or Operators of the McLane Facility
`B.
`15.
`CSPA is informed and believes, and thereon alleges, that McLane Company is
`headquartered at 800 E. Pescadero Avenue, Tracy, California.
`CSPA is informed and believes, and thereon alleges, that Defendant is the owner of the
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`McLane Foodservice, Inc.
`CSPA is informed and believes, and thereon alleges, that Defendant is the operator of the
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`McLane Facility
`CSPA refers to Defendant and its management herein as the “Owners/Operators” of the
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`Facility.
`Complaint for Declaratory and Injunctive
`and Civil Penalties Relief
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`CSPA is informed and believes, and thereon alleges, that Defendant is an active
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`California corporation registered in California.
`STATUTORY BACKGROUND
`IV.
`The Clean Water Act
`A.
`20.
`Section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a), prohibits the discharge of
`any pollutant into waters of the United States unless the discharge complies with various enumerated
`sections of the CWA. Among other things, Section 301(a) prohibits discharges not authorized by, or in
`violation of, the terms of a National Pollutant Discharge Elimination System (“NPDES”) permit issued
`pursuant to Section 402 of the CWA, 33 U.S.C. §§ 1311(a) and 1342(b).
`Section 402(p) of the CWA establishes a framework for regulating municipal and
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`industrial storm water discharges under the NPDES program. 33 U.S.C. § 1342(p). States with approved
`NPDES permit programs are authorized by Section 402(p) to regulate industrial storm water discharges
`through individual permits issued to dischargers and/or through the issuance of a single, statewide
`general permit applicable to all industrial storm water dischargers. 33 U.S.C. § 1342.
`Section 301(b) of the Clean Water Act requires that, by March 31, 1989, all point source
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`dischargers, including those discharging polluted storm water, must achieve technology-based effluent
`limitations by utilizing Best Available Technology Economically Achievable (“BAT”) for toxic and
`nonconventional pollutants and the Best Conventional Pollutant Control Technology (“BCT”) for
`conventional pollutants. See 33 U.S.C. § 1311(b); 40 C.F.R. § 125.3(a)(2)(ii)-(iii).
`The Clean Water Act requires point source discharges of pollutants to navigable waters
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`be regulated by an NPDES permit. 33 U.S.C. § 1311(a); see 40 C.F.R. § 122.26(c)(1).
`The “discharge of a pollutant” means, among other things, “any addition of any pollutant
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`to navigable waters from any point source.” 33 U.S.C. § 1362(12); see 40 C.F.R. § 122.2.
`The term “pollutant” includes “dredged spoil, solid waste, incinerator residue, sewage,
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`garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat,
`wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste
`discharged into water.” 33 U.S.C. § 1362(6); see 40 C.F.R. § 122.2.
`The term “point source” means any “discernible, confined and discrete conveyance,
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`Complaint for Declaratory and Injunctive
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`and Civil Penalties Relief
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`including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container,
`rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which
`pollutants are or may be discharged.” 33 U.S.C. § 1362(14); see 40 C.F.R. § 122.2.
`“Navigable waters” means “the waters of the United States.” 33 U.S.C. 1362(7).
`27.
`28.
`“Waters of the United States” are defined as “navigable waters,” and “all waters which
`are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce,
`including waters which are subject to the ebb and flow of the tide.” 33 U.S.C. § 1362(7).
`The EPA promulgated regulations for the Section 402 NPDES permit program defining
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`“waters of the United States.” See 40 C.F.R. § 122.2. The EPA interprets waters of the United States to
`include not only traditionally navigable waters but also other waters, including waters tributary to
`navigable waters, wetlands adjacent to navigable waters, and other waters including intermittent streams
`that could affect interstate commerce.
`The Clean Water Act confers jurisdiction over non-navigable waters that are tributaries to
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`traditionally navigable waters where the non-navigable water at issue has a significant nexus to the
`navigable water. See Rapanos v. United States, 547 U.S. 715 (2006); see also N. Cal. River Watch v.
`City of Healdsburg, 496 F.3d 993 (9th Cir. 2007).
`31. A significant nexus is established if the “[receiving waters], either alone or in
`combination with similarly situated lands in the region, significantly affect the chemical, physical, and
`biological integrity of other covered waters.” Rapanos, 547 U.S. at 779; N. Cal. River Watch, 496 F.3d
`at 999-1000.
`32. A significant nexus is also established if waters that are tributary to navigable waters
`have flood control properties, including functions such as the reduction of flow, pollutant trapping, and
`nutrient recycling. Rapanos, 547 U.S. at 782; N. Cal. River Watch, 496 F.3d at 1000-1001.
`Section 505(a)(1) and Section 505(f) of the Clean Water Act provide for citizen
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`enforcement actions against any “person” who is alleged to be in violation of an “effluent standard or
`limitation . . . or an order issued by the Administrator or a State with respect to such a standard or
`limitation.” See 33 U.S.C. §§ 1365(a)(i) and 1365(f).
`The Defendants are “person[s]” within the meaning of Section 502(5) of the Clean Water
`34.
`Complaint for Declaratory and Injunctive
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`and Civil Penalties Relief
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`Act, 33 U.S.C. § 1362(5).
`35. An action for injunctive relief is authorized under Section 505(a) of the CWA, 33 U.S.C.
`§ 1365(a).
`Pursuant to sections 309(d) and 505 of the Clean Water Act, each separate violation of
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`the CWA occurring before November 2, 2015 subjects the violator to a penalty of up to $37,500 per day;
`violations occurring after November 2, 2015 and assessed on or after January 15, 2018 subjects the
`violator to a penalty of up to $53,484 per day. See 33 U.S.C. §§ 1319(d) and 1365(a); 40 C.F.R. § 19.4
`(Adjustment of Civil Monetary Penalties for Inflation).
`Section 505(d) of the Clean Water Act, 33 U.S.C. § 1365(d), permits prevailing or
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`substantially prevailing parties to recover litigation costs, including attorneys’ fees, experts’ fees, and
`consultants’ fees.
`California’s Storm Water Permit
`B.
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`Section 402(b) of the CWA, 33 U.S.C. § 1342(b), allows each state to administer its own
`EPA-approved NPDES permit program for regulating the discharge of pollutants, including discharges
`of polluted storm water. States with approved NPDES permit programs are authorized by Section 402(b)
`to regulate industrial storm water discharges through individual NPDES permits issued to dischargers
`and/or through the issuance of a statewide general NPDES permit applicable to all industrial storm water
`dischargers. See id.
`Pursuant to Section 402 of the CWA, 33 U.S.C. § 1342, the Administrator of the EPA has
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`authorized California to issue NPDES permits, including general NPDES permits. California has
`designated the State Board and the Regional Water Quality Control Boards to administer its NPDES
`program. City of Rancho Cucamonga v. Regional Water Quality Control Bd., 135 Cal. App. 4th 1377,
`1380-81 (2006). In California, the State Board is charged with regulating pollutants to protect
`California’s water resources. See Cal. Water Code § 13001.
`The Storm Water Permit is a statewide general NPDES permit issued by the State Board
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`pursuant to Section 402 of the CWA, 33 U.S.C. §§ 1342(b), (p), and 40 C.F.R § 123.25. Violations of
`the Storm Water Permit are also violations of the CWA. 1997 Permit, Section C(1); 2015 Permit,
`Section XXI(A).
`Complaint for Declaratory and Injunctive
`and Civil Penalties Relief
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`Section 303 of the CWA, 33 U.S.C. § 1313, requires states to adopt Water Quality
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`Standards, including water quality objectives and beneficial uses for navigable waters of the United
`States. The CWA prohibits discharges from causing or contributing to a violation of such state Water
`Quality Standards. See 33 U.S.C. § 1313(b)(1)(c); 40 C.F.R. §§ 122.4(a), (d); 40 C.F.R. §§
`122.44(D)(1).
`42. Under the applicable EPA regulations all surface and ground waters of the State of
`California are considered to be suitable, or potentially suitable, for municipal or domestic water supply
`and should be so designated by the Regional Boards unless a strict use attainability analysis is performed
`based upon a structured scientific assessment of the factors affecting the attainment of uses specified in
`Section 101(a)(2) of the Clean Water Act (the so called "fishable/swimmable" uses). 40 CFR 131.10(a)
`and (g).
`The State Board elected to issue a statewide general permit for industrial discharges. The
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`State Board issued the Storm Water Permit on or about November 19, 1991, modified the Storm Water
`Permit on or about September 17, 1992, and reissued the Storm Water Permit on or about April 17,
`1997, pursuant to Section 402(p) of the Clean Water Act, 33 U.S.C. § 1342(p).
`44. On July 1, 2015 the 2015 Permit became effective and was issued as NPDES General
`Permit No. CAS000001 (the same NPDES permit number as the 1997 Permit). 2015 Permit, Section
`I(A) (Finding 4). The 2015 Permit superseded the 1997 Permit except for enforcement purposes. Id. at
`Section I(A) (Finding 6). The substantive requirements of the 2015 Permit are the same or more
`stringent than the requirements of 1997 Permit.
`45. On November 6, 2018, the State Board issued an amended but not yet adopted Order No.
`20XX-XXX-DWQ, incorporating: 1) Federal Sufficiently Sensitive Test Method Ruling; 2) TMDL
`Implementation Requirements; and 3) Statewide Compliance Options Incentivizing On-Site or Regional
`Storm Water Capture and Use (“2018 Permit”).
`In order to discharge storm water lawfully in California, industrial dischargers must
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`secure coverage under the Storm Water Permit and comply with its terms, or obtain and comply with an
`individual NPDES permit. 1997 Permit, p. II-V; 2015 Permit, Section I(A) (Findings 8, 12). Prior to
`beginning industrial operations, dischargers are required to apply for coverage under the Storm Water
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`Permit by submitting a Notice of Intent to Comply with the Terms of the General Permit to Discharge
`Storm Water Associated with Industrial Activity (“NOI”) to the State Board. See 1997 Permit, Provision
`E(1), Finding 3; 2015 Permit, Section I(A) (Finding 17), Section II(B).
`Section 505(a)(1) of the CWA, 33 U.S.C. § 1365(a)(1), provides for citizen enforcement
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`actions against any “person” who is alleged to be in violation of an “effluent standard or limitation . . .
`or an order issued by the Administrator or a State with respect to such a standard or limitation.” See 33
`U.S.C. §§ 1365(a)(i), 1365(f).
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`C.
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`The Storm Water Permit’s Discharge Prohibitions, Effluent Limitations, and
`Receiving Water Limitations
`The Storm Water Permit contains certain absolute prohibitions. The Storm Water Permit
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`prohibits the direct or indirect discharge of materials other than storm water (“non-storm water
`discharges”), which are not otherwise authorized by an NPDES permit, to the waters of the United
`States. 1997 Permit, Discharge Prohibition A(1); 2015 Permit, Discharge Prohibition III(B).
`Effluent Limitation (B)(3) of the 1997 Permit and Effluent Limitation V(A) of the 2015
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`Permit requires dischargers to reduce or prevent pollutants associated with industrial activity in storm
`water discharges through the implementation of Best Available Technology Economically Achievable
`(“BAT”) for toxic or non-conventional pollutants, and Best Conventional Pollutant Control Technology
`(“BCT”) for conventional pollutants. Toxic pollutants are listed at 40 C.F.R. § 401.15 and include
`copper, lead, and zinc, among others. Conventional pollutants are listed at 40 C.F.R. § 401.16 and
`include biological oxygen demand (“BOD”), TSS, oil and grease (“O&G”), pH, and fecal coliform.
`Discharge Prohibition (A)(2) of the 1997 Permit and Discharge Prohibition III(C) of the
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`2015 Permit prohibits storm water discharges that cause or threaten to cause pollution, contamination, or
`nuisance.
`Under the CWA and the Storm Water Permit, dischargers must employ Best
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`Management Practices (“BMPs”) that constitute BAT and BCT to reduce or eliminate storm water
`pollution. 33 U.S.C. § 1311(b); 1997 Permit, Effluent Limitation B(3); 2015 Permit, Effluent Limitation
`V(A). EPA has developed benchmark levels (“Benchmarks”) that are objective guidelines to evaluate
`whether a permittee’s BMPs achieve compliance with the BAT/BCT standards. See Final National
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`Complaint for Declaratory and Injunctive
`and Civil Penalties Relief
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`Pollutant Discharge Elimination System (NPDES) General Permit for Storm Water Discharges From
`Industrial Activities (“Multi-Sector Permit”), 80 Fed. Reg. 34,403, 34,405 (June 16, 2015); Multi-Sector
`Permit, 73 Fed. Reg. 56,572, 56,574 (Sept. 29, 2008; Multi-Sector Permit, 65 Fed. Reg. 64,746, 64,766-
`67 (Oct. 30, 2000).
`The EPA established Parameter Benchmark Values for the following parameters, among
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`many others: total suspended solids (“TSS”)—100 mg/L; oil & grease (“O&G”)—15 mg/L; ammonia
`(“NH”)—2.14 mg/L; aluminum (“Al”)—.75 mg/l; chemical oxygen demand (“COD”)—120 mg/L; iron
`(“Fe”)—1 mg/l; copper (“Cu”)—.0123 mg/l; zinc (“Zn”)—.11 mg/L; pH—6-9 s.u.; and nitrate & nitrite
`nitrogen (“N+N”)—0.68 mg/L. The Basin Plan’s Water Quality Standards for the Central Valley Region
`requires a narrower pH range of 6.5—8.5 pH units. The 2015 Permit contains Numeric Action Levels
`(“NALs”) for these same parameters that generally mirror the Benchmark Values.
`The 2015 Permit includes NALs. 2015 Permit, Section I(M) (Finding 62). During the
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`public commenting period, the State Board stated that "NALs are not designed or intended to function as
`numeric technology-based effluent limitations.” State Board 2012 Draft Industrial General Permit
`Response to Comments, Response #6 to Comment #12; see also 2015 Permit Section I(M) (Finding 63).
`Receiving Water Limitation C(1) of the 1997 Permit and Receiving Water Limitation
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`VI(B) of the 2015 Permit prohibit storm water discharges from adversely impacting human health or the
`environment.
`Discharges with pollutant levels that exceed levels known to adversely impact aquatic
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`species and the environment are violations of the Storm Water Permit’s Receiving Water Limitation.
`Receiving Water Limitation C(2) of the 1997 Permit and Receiving Water Limitation
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`VI(A) of the 2015 Permit prohibit storm water discharges that cause or contribute to an exceedance of
`any “applicable Water Quality Standard in a Statewide Water Quality Control Plan or the applicable
`Regional Board’s Basin Plan.”
`57. Water Quality Standards (“WQS”) are pollutant concentration levels determined by the
`State Board, the various Regional Boards, and the EPA to be protective of the beneficial uses of the
`waters that receive polluted discharges.
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`Complaint for Declaratory and Injunctive
`and Civil Penalties Relief
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`The State of California regulates water quality through the State Board and the nine
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`Regional Boards. Each Regional Board maintains a separate Water Quality Control Plan which contains
`WQS for water bodies within its geographic area.
`The State Water Quality Control Board has issued the Water Quality Control Plan for the
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`Sacramento River and San Joaquin River Basins (“the Basin Plan”) to establish water quality objectives,
`implementation plans for point and non-point source discharges, prohibitions, and to further statewide
`plans and policies. The Basin Plan states the “All waters shall be maintained free of toxic substances in
`concentrations that produce detrimental physiological responses in human, plant, animal, or aquatic
`life.” Basin Plan, 3.1.20. The Basin Plan sets forth water quality objectives for dissolved metals such as
`aluminum, arsenic, and mercury. Basin Plan, Table 3-1. The Basin Plan decrees that waters shall not
`contain chemical constituents, discoloration, substances or floating material in concentrations that cause
`nuisance or adversely affect beneficial uses Id. at 3.1
`The Basin Plan specifies existing beneficial uses for the Sacramento-San Joaquin Delta,
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`including navigation, contact and non-contact recreation, commercial and sportfishing, estuarine habitat,
`wildlife habitat, rare, threatened, or endangered species habitat, migration of aquatic organisms, and
`spawning, reproduction and/or early development. Basin Plan, Table 2-1.
`The Water Quality Control Plan for the Sacramento River and San Joaquin River Basins
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`also sets forth water quality standards and prohibitions applicable to McLane’s storm water discharges.
`The Basin Plan identifies existing and potential Beneficial Uses for water bodies in the greater
`Sacramento-San Joaquin River Basin, which includes Sugar Cut, the Old River and Clifton Court
`Forebay, such as contact and non-contact water recreation, wildlife habitat, cold and warm freshwater
`habitat, spawning, and municipal supply, and also notes that beneficial uses vary throughout the Delta
`and are evaluated on a case by case basis. (Basin Plan, Table 2-1.)
`Surface waters that cannot support the Beneficial Uses of those waters listed in the Basin
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`Plan are designated as impaired water bodies pursuant to Section 303(d) of the Clean Water Act.
`The Old River is listed for the following impairments on the 2016 303(d) list of impaired
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`waterbodies: chlorpyrifos, low dissolved oxygen, electrical conductivity, and total dissolved solids. The
`Delta Waterways (export areas), the waters surrounding Clifton Court Forebay, are impaired for the
`Complaint for Declaratory and Injunctive
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`following constituents: toxicity, diazinon, DDT (dichlorodiphenyltrichloroethane), Group A pesticides,
`electrical conductivity, mercury, and chlorpyrifos.
`In addition, EPA has promulgated WQS for toxic priority pollutants in all California
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`water bodies (“California Toxics Rule” or “CTR”), which apply to the Receiving Waters, unless
`expressly superseded by the Basin Plan. 65 Fed. Reg. 31,682 (May 18, 2000); 40 C.F.R. § 131.38.
`The CTR sets forth lower numeric limits for zinc and other pollutants; CTR criteria can
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`be as low as 0.067 mg/L for zinc in freshwater surface waters with water hardness calculation of 50
`mg/L.2
`The CTR includes further numeric criteria set to protect human health and the
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`environment in the State of California. See Establishment of Numeric Criteria for Priority Toxic
`Pollutants for the State of California Factsheet, EPA-823-00-008 (April 2000), available at:
`https://www.epa.gov/wqs-tech/water-quality-standards-e