Attorneys for Petitioner SAN DIEGO COASTKEEPER

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2 1 Matt O'Malley (Bar No. 0) SAN DIEGO COASTKEEPER Dewey Road, Suite 0 San Diego, California Telephone: () - matt@sdcoastkeeper.org Attorney for Petitioner SAN DIEGO COASTKEEPER Arthur Pugsley (Bar No. 0) Melissa Kelly (Bar No. 00) LOS ANGELES WATERKEEPER 1 Broadway, Suite Santa Monica, California 001 Telephone: () - Facsimile: () - Attorneys for Petitioner LOS ANGELES WATERKEEPER Verified Petition for Writ of Mandate

3 1 I. Introduction 1. California s waterways cannot support their designated beneficial uses due to hydrological modifications, e.g., excessive water diversions, over pumping, channelization, and concretization. However, the State Water Resources Control State Board (State Board or SWRCB) has failed and continues to fail to properly identify these hydrologically impaired waters as the first step to restoring their chemical, physical, and biological integrity.. Earth Law Center (ELC), San Diego Coastkeeper (Coastkeeper), and Los Angeles Waterkeeper (Waterkeeper and collectively Petitioners) hereby petition this Court for a Writ of Mandate pursuant to California Code of Civil Procedure section. and section : a. Compelling the State Board to identify hydrologically impaired waterways in California s / Integrated Report as required by section 0(d) of the Federal Water Pollution Control Act (Clean Water Act); b. Compelling the State Board to identify hydrologically impaired waterways in California s / Integrated Report as required by section 0(b) of the Clean Water Act; c. Compelling the State Board to rely on all readily available data, including the information gathered pursuant to section 0(b) of the Clean Water Act, before adopting California s / Integrated Report; d. Enjoining the State Board from failing to comply with the mandatory deadlines of sections 0(d) and 0(b) of the Clean Water Act; and/or e. Compelling the State Board to comply with the mandatory requirements of the California Environmental Quality Act (CEQA), Public Resources Code section 000 et seq., in developing California s / Integrated Report. II. The Parties A. Earth Law Center. ELC is a non-profit public benefit corporation organized under the laws of the State of Florida and headquartered in New York, New York. 0.. ELC s primary office is located at East 1th Street, Suite B, New York, New York Verified Petition for Writ of Mandate 1

4 1. ELC works to transform the law to recognize and protect nature s inherent rights to exist, thrive and evolve. This includes advancing the inherent rights of rivers. ELC fulfills its mission by building a force of advocates for nature s rights at local and international levels.. Protecting the rights of California rivers to flow is a focus area of ELC s work, including through full Clean Water Act implementation. In particular, for more than a year (since the beginning of the delayed Integrated Report process), ELC has participated in the State Board s administrative process related to the / Integrated Report, including submission of numerous comment letters and participation in multiple public hearings and workshops. And ELC has been closely involved with the State Board s administrative process related to Integrated Reports in general for more than five years. For example, ELC submitted numerous rounds of written and oral comments on the 1 version of California s Integrated Report asking for the recognition of the most over-diverted waterways as impaired due to altered flows including rivers that have zero flow for parts of the year.. Thus, the interests of ELC have been, are being, and will continue to be adversely affected by the State Board s failure to comply with the requirements of the Clean Water Act, the Water Code, and CEQA. The relief sought herein will redress the harms to ELC caused by the State Board s failures to act. Continuing commission of the omissions alleged herein will irreparably harm ELC, for which harm they have no plain, speedy or adequate remedy at law. B. San Diego Coastkeeper. Coastkeeper is a non-profit public benefit corporation organized under the laws of the State of California and headquartered in San Diego, California.. Coastkeeper s office is located at Dewey Road, Suite 0, San Diego, California 0.. Coastkeeper has approximately,000 members who live and/or recreate in and around San Diego County watersheds. Coastkeeper is dedicated to the preservation, protection, and defense of the environment, wildlife, and natural resources of San Diego County watersheds. To further these goals, Coastkeeper actively seeks federal and state agency implementation of the Clean Water Act, and, where necessary, directly initiates enforcement actions on behalf of itself, its members, and others. In particular, Coastkeeper actively participated in the administrative process related to the / Verified Petition for Writ of Mandate

5 1 Integrated Report, including submission of comments letters and water quality data, and participation in public hearings.. Coastkeeper s members use and enjoy the waters in the San Diego region that the State Board failed to identify as hydrologically impaired for swimming, boating, kayaking, bird watching, viewing wildlife, hiking, biking, walking, running, engaging in scientific study, including monitoring and restoration activities, and/or for aesthetic enjoyment. 1. Thus, the interests of Coastkeeper and its members have been, are being, and will continue to be adversely affected by the State Board s failure to comply with the requirements of the Clean Water Act, the Water Code, and CEQA. The relief sought herein will redress the harms to Coastkeeper caused by the State Board s failures to act. Continuing commission of the omissions alleged herein will irreparably harm Coastkeeper s members, for which harm they have no plain, speedy or adequate remedy at law. C. Los Angeles Waterkeeper. Waterkeeper is a non-profit 01(c)() public benefit corporation organized under the laws of California and headquartered in Santa Monica, California.. Waterkeeper s office is located at 1 Broadway, Suite, Santa Monica, California Waterkeeper has approximately,000 members who live and/or recreate in and around the Los Angeles area, including in the Los Angeles River watershed and Santa Monica Bay. Waterkeeper is dedicated to the preservation, protection, and defense of all coastal and inland ground and surface waters in Los Angeles County. To further these goals, Waterkeeper actively seeks federal and state agency implementation of the Clean Water Act and, where necessary, directly initiates enforcement actions on behalf of itself, its members, and others. In particular, Waterkeeper actively participated in the administrative process related to the / Integrated Report, including submission of timely comments and testimony at the Los Angeles region and statewide public hearings in Sacramento.. Waterkeeper s members use and enjoy the Los Angeles area watersheds, including waterways the State Board failed to identify as hydrologically impaired, for fishing, boating, swimming, Verified Petition for Writ of Mandate

6 1 bird watching, picnicking, viewing wildlife, sailing, kayaking, hiking, engaging in scientific study, including monitoring and research activities, and/or for aesthetic enjoyment.. Thus, the interests of Waterkeeper and its members have been, are being, and will continue to be adversely affected by the State Board s failure to comply with the requirements of the Clean Water Act, the Water Code, and CEQA. The relief sought herein will redress the harms to Waterkeeper caused by the State Board s failures to act. Continuing commission of the omissions alleged herein will irreparably harm Waterkeeper s members, for which harm they have no plain, speedy or adequate remedy at law. D. The State Board. The State Board is now, and at all times mentioned in this petition has been, a state agency under the laws of the State of California. (See Water Code et seq.). The State Board is required to coordinate consideration of water rights, water quality, and safe and reliable drinking water. (Water Code (b).). The State Board is responsible for carrying out the requirements of sections 0(d) and 0(b) of the Clean Water Act. (See U.S.C., ; 0 C.F.R. 0., 0..). For purposes of Division of the Water Code, California is divided into nine regions. (See Water Code 0.) These regional water quality control boards (RWQCBs) are required to coordinate with the State Board and other RWQCBs, as well as other state agencies with responsibility for water quality, with respect to water quality control matters. (Water Code (a).). The State Board is responsible for carrying out the requirements of CEQA, including the requirement to analyze the environmental impacts of any project the State Board approves. (See Pub. Res. Code 000.) III. Jurisdiction and Venue. This Court has jurisdiction over this action pursuant to Code of Civil Procedure sections. and.. Venue is proper in this Court pursuant Code of Civil Procedure sections and 01, as defendant State Board is a resident of Sacramento County and the Attorney General maintains an office in Sacramento County. Verified Petition for Writ of Mandate

7 . Under Water Code section 0(a), this action is properly before this Court, as it is filed not later than 0-days from the date the State Board approved California s / Integrated Report.. Under Public Resources Code section, this action is properly before this Court, as it is filed not later than 0 days from the date the State Board approved California s / Integrated Report, which is the shortest possible statute of limitations applicable to CEQA claims. IV. Regulatory Background A. The Clean Water Act s Purpose and Effluent Limitation Requirements. The Clean Water Act is a comprehensive water quality statute designed to restore and 1 maintain the chemical, physical, and biological integrity of the Nation s waters. (PUD No. 1 of Jefferson County v. Wash. Dep t of Ecology () U.S. 00, 0 (quoting U.S.C. (a).) The distinction between water quality and quantity under the Clean Water Act is artificial. (PUD No. 1, U.S. at 01.). To achieve this purpose, the Clean Water Act requires, among other things, that two types of effluent limitations be established: technology-based effluent limitations and water-quality based effluent limitations. (See U.S.C..). When technology-based effluent limitations prove insufficient to adequately protect water quality, water-quality based effluent limitations meant to achieve water quality standards established by each state in coordination with the Environmental Protection Agency (EPA), including California, apply. (See U.S.C. (b)(1)(c), (a).) Water quality standards consist of: (1) designated beneficial uses, () water quality criteria sufficient to protect the designated uses, and () an antidegradation policy to prevent clean waters from slipping below applicable standards. (See 0 C.F.R. 0.(d).) 0. Categories of designated beneficial uses include: (1) aquaculture, raising fish or other aquatic organisms not for release to other waters; () domestic, water used by homes, resorts, or campgrounds, including water for household animals, lawns, and shrubs; () fire protection, water to extinguish fires; () fish and wildlife, enhancement of fish and wildlife resources, including raising fish or other organisms for scientific study or release to other waters of the state; () frost protection, sprinkling to protect crops from frost damage; () heat control, sprinkling to protect crops from heat; Verified Petition for Writ of Mandate

8 1 () industrial use, water needs of commerce, trade, or industry; () irrigation, agricultural water needs; () mining, hydraulicking, drilling and concentrator table use; () municipal, city and town water supplies; () power, generating hydroelectric and hydromechanical power; (1) recreation, boating, swimming, and fishing; () stock watering, commercial livestock water needs; and () water quality control, protecting and improving waters that are put to beneficial use. See Water Code 0,, 0, 0.1, 0., 0.,,,., 1,, 1, 1.,,., and 00(f). 1. Water quality objectives are numeric or narrative water quality standards that must be attained or maintained in order to protect the designated beneficial uses of a water body. (See U.S.C. 1, (a).) B. Section 0(d) of the Clean Water Act. Section 0(d) of the Clean Water Act requires each state, including California, to identify waterways within their boundaries where effluent limitations are insufficient to ensure compliance with water quality standards and that a water body can no longer be put to its designated beneficial uses. Waterways identified pursuant to section 0(d) are referred to as impaired waters or water quality limited segments. (See 0 C.F.R. 0.(j) (defining water quality limited segments ).) And the compilation of information required by section 0(d) is commonly referred to as the 0(d) list.. In particular, [e]ach State shall identify those waters within its boundaries for which the effluent limitations are not stringent enough to implement any water quality standard applicable to such waters. The State shall establish a priority ranking for such waters, taking into account the severity of the pollution and the uses to be made of such waters. ( U.S.C. (d)(1)(a) (emphasis added); see also Pronsolino v. Nastri (th Cir. 0) 1 F.d,.) Priority ranking under section 0(d)(1)(A) includes consideration of a state s 0(b) report. (See Fed.Reg. 0, 0.). In addition, [e]ach State shall identify those waters or parts thereof within its boundaries for which controls on thermal discharges under section 01 are not stringent enough to assure protection and propagation of a balanced indigenous population of shellfish, fish, and wildlife. ( U.S.C. (d)(1)(b) (emphasis added).) Verified Petition for Writ of Mandate

9 1. Pursuant to section 0(d)(1)(C), each state must establish for the waters identified in [section 0(d)(1)(A)], and in accordance with the priority ranking, the total maximum daily load, for those pollutants which the Administrator [of the EPA] identifies as suitable for such calculation. ( U.S.C. (d)(1)(c) (emphasis added).) On December,, the EPA identified all pollutants as suitable for the calculation of total maximum daily loads under the proper technical conditions. (See Fed.Reg. 0, 0.). Each State shall submit to the Administrator from time to time, with the first such submission not later than one hundred and eighty days after the date of publication of the first identification of pollutants under section 0(a)()(D), for his approval the waters identified and the loads established under [0(d)(1)(A), 0(d)(1)(B), 0(d)(1)(C), and 0(d)(1)(D)]. ( U.S.C. (d)() (emphasis added).) As explained by EPA, to comply with the requirements of section 0(d)() states must submit: [a]n identification of waters for which effluent limitations are not stringent enough to implement applicable water quality standards. This requirement can be satisfied by referencing documents already submitted to EPA, e.g., section 0(b) reports.... ( Fed.Reg. 0, 0.). Regulations implementing section 0(d)() require each state, including California, to submit their 0(d) list by April 1 of every even numbered year. (0 C.F.R. 0.(d)(1); see also Anacostia Riverkeeper, Inc. v. Jackson (D.D.C. ) F. Supp. d 0,.). For the specific purpose of developing information, each State shall identify all waters within its boundaries which it has not identified [under section 0(d)(1)(A) and 0(d)(1)(B)] and estimate for such waters the total maximum daily load with seasonal variations and margins of safety, for those pollutants which the Administrator identifies as suitable for such calculation and for thermal discharges, at a level that would assure protection and propagation of a balanced indigenous population of fish, shellfish and wildlife. ( U.S.C. (d)().) With respect to section 0(d)(), EPA explained that [w]hile States should identify all water segments within their boundaries, TMDL s need be calculated only for pollutants for which the segments are water quality limited. ( Fed.Reg. 0, 0 (emphasis original).). Each State shall assemble and evaluate all existing and readily available water quality- Verified Petition for Writ of Mandate

10 1 related data and information to develop the 0(d) list. (0 C.F.R. 0.(b)().) At a minimum all existing and readily available water quality-related data and information includes but is not limited to all of the existing and readily available data and information about the following categories of waters: Waters identified by the State in its most recent section 0(b) report as partially meeting or not meeting designated uses or as threatened ;. (Id. (emphasis added); see also 0 Integrated Water Quality Monitoring and Assessment Report Guidance, p., Envt l Prot. Agency, Nov., 01 (citing Reports of water quality problems provided by local, state, territorial or federal agencies, volunteer monitoring networks, members of the public or academic institutions as existing and readily available data).) C. Section 0(b) of the Clean Water Act 0. Section 0(b) of the Clean Water Act requires each state, including California, to report to EPA on the water quality of all navigable waters of the state on a biannual basis. This report is commonly referred to as the 0(b) report. 1. The 0(b) report is broader than the 0(d) list, as [e]ach State shall prepare and submit to the Administrator by April 1,, and shall bring up to date by April 1,, and biennially thereafter, a report which shall include-- a description of the water quality of all navigable waters in such State during the preceding year, with appropriate supplemental descriptions as shall be required to take into account seasonal, tidal, and other variations, correlated with the quality of water required by the objective of this Act ; an analysis of the extent to which all navigable waters of such State provide for the protection and propagation of a balanced population of shellfish, fish, and wildlife, and allow recreational activities in and on the water; an analysis of the extent to which the elimination of the discharge of pollutants and a level of water quality which provides for the protection and propagation of a balanced population of shellfish, fish, and wildlife and allows recreational activities in and on the water, have been or will be achieved by the requirements of this Act, together with recommendations as to additional action necessary to achieve such objectives and for what waters such additional action is necessary; an estimate of (i) the environmental impact, (ii) the economic and social costs necessary to achieve the objective of this Act in such State, (iii) the economic and social benefits of such achievement, and (iv) an estimate of the date of such achievement; and a description of the nature and Verified Petition for Writ of Mandate

11 1 extent of nonpoint sources of pollutants, and recommendations as to the programs which must be undertaken to control each category of such sources, including an estimate of the costs of implementing such programs. ( U.S.C. (b) (emphasis added); see also 0 C.F.R. 0.(b).). As EPA has stated, Section 0(b) of the CWA requires that all waters be assessed every two years. (0 Integrated Water Quality Monitoring and Assessment Report Guidance, p., Envt l Prot. Agency, Nov., 01 (emphasis added).). A state s section 0(b) report serves as the primary assessment of State water quality. Based upon the water quality data and problems identified in the 0(b) report, States develop water quality management (WQM) plan elements to help direct all subsequent control activities. Water quality problems identified in the 0(b) report should be analyzed through water quality management planning leading to the development of alternative controls and procedures for problems identified in the latest 0(b) report. (0 C.F.R. 0.(a).) D. Integrated Reports and EPA Categories. Beginning with the 0(d) lists and 0(b) reports that were due in 0, EPA Guidance instructs that states submit Integrated Reports that include information required by both statutory sections. (See 0 Integrated Water Quality Monitoring and Assessment Report Guidance, p. 1, Envt l Prot. Agency, Nov., 01 ( For the first time, [EPA] is providing states, territories, and authorized tribes with guidance for integrating the development and submission of 0 0(b) water quality reports and Section 0(d) lists of impaired waters. ); see also 0 Guidance for 0 Assessment, Listing and Reporting Requirements Pursuant to Sections 0(d), 0(b) and of the Clean Water Act, Envt l Prot. Agency, July, 0).). EPA identifies categories into which states should place waterways identified in Integrated Reports: Category 1, Category, Category, Category A, Category B, Category C, and Category. (See 0 Integrated Water Quality Monitoring and Assessment Report Guidance, pp. -, Envt l Prot. Agency, Nov., 01.). States should assign all of their surface water segments to one or more of the five reporting categories presented in Section V of this guidance. (0 Guidance for 0 Assessment, Listing and Reporting Requirements Pursuant to Sections 0(d), 0(b) and of the Clean Water Verified Petition for Writ of Mandate

12 1 Act, p., Envt l Prot. Agency, July, 0 (emphasis added); see also Information Concerning Clean Water Act Sections 0(d), 0(b), and Integrated Reporting and Listing Decisions, p., Envt l Prot. Agency, August, ).) Thus EPA s guidance is that assessment categories are not mutually exclusive, and waters may be placed in more than one category (for example, Categories C and ).. Waters should be listed in Category C if the impairment is not caused by a pollutant. (See 0 Integrated Water Quality Monitoring and Assessment Report Guidance, p., Envt l Prot. Agency, Nov., 01; see also 0 Guidance for 0 Assessment, Listing and Reporting Requirements Pursuant to Sections 0(d), 0(b) and of the Clean Water Act, p., Envt l Prot. Agency, July, 0 ( Examples of circumstances where an impaired segment may be placed in Category c include segments impaired solely due to lack of adequate flow or to stream channelization. ).) Data or information based on visual observations of no water in a perennial stream would be information on the physical condition of the stream, and would demonstrate the aquatic life or recreational use is most likely not being attained and a State may conclude that the designated use is impaired. ( Information Concerning Clean Water Act Sections 0(d), 0(b), and Integrated Reporting and Listing Decisions, p., Envt l Prot. Agency, August, ; see also Draft EPA-USGS Technical Report: Protecting Aquatic Life from Effects of Hydrologic Alteration, Ch., February ( EPA recommends reporting impairments due to hydrologic alteration in Category c, which are those impairments due to pollution not requiring a TMDL ).). EPA encourages States to evaluate all existing and readily available data and/or information when determining the attainment status of a water. Thus, data and/or information documenting significant hydrologic or habitat alteration could be used to make a use attainment decision for an impairment due to pollution not caused by a pollutant and should be collected, evaluated, and reported as appropriate. ( Information Concerning Clean Water Act Sections 0(d), 0(b), and Integrated Reporting and Listing Decisions, p., Envt l Prot. Agency, August,.). Category constitutes the section 0(d) list that EPA will review and approve or disapprove pursuant to 0 CFR 0.. States must include on their section 0(d) list those waters required to be listed by the Clean Water Act and EPA s implementing regulations. Segments must be Verified Petition for Writ of Mandate

13 1 placed in Category when, based on existing and readily available data and/or information, technologybased effluent limitations required by the Act, more stringent effluent limitations, and other pollution control requirements are not sufficient to implement an applicable water quality standard and a TMDL is needed. 0 CFR 0.(b)(1). (0 Guidance for 0 Assessment, Listing and Reporting Requirements Pursuant to Sections 0(d), 0(b) and of the Clean Water Act, p., Envt l Prot. Agency, July, 0.) 0. A segment that is included in Category may also be included in other categories where appropriate. (0 Guidance for 0 Assessment, Listing and Reporting Requirements Pursuant to Sections 0(d), 0(b) and of the Clean Water Act, p., Envt l Prot. Agency, July, 0.) Category takes precedence if the state chooses to list a segment in only one category. (Id.) 1. In an Integrated Report [a] state or territory should provide the public an opportunity to review and comment on an integrated assessment of the status of all waters within its jurisdiction. This integrated assessment will include monitoring schedules, the assessment and listing methodology, and supporting data and information used to develop the Integrated Report. (See 0 Integrated Water Quality Monitoring and Assessment Report Guidance, p., Envt l Prot. Agency, Nov., 01.). In order to provide states and territories with the necessary time to integrate the requirements of Sections 0(b) and 0(d), EPA has extended the date for the submission of 0(d) lists of AUs [assessment units] still requiring the establishment of a TMDL to October 1, 0. (See 0 Integrated Water Quality Monitoring and Assessment Report Guidance, p., Envt l Prot. Agency, Nov., 01.) No other extensions have been granted to for submission of the Integrated Report.. States and territories must provide a description of the assessment and listing methodology used to develop their Section 0(d) lists and Section 0(b) reports. This methodology should include a description of the processes and procedures used to assess the quality of the waters and explain how all existing and readily available data and information was assembled and used to determine the attainment status in each AU, consistent with the applicable water quality standards. (See 0 Integrated Water Quality Monitoring and Assessment Report Guidance, p., Envt l Prot. Agency, Nov., 01.) An AU is [a] waterbody whose attainment status is reported in the Integrated Report. (See 0 Integrated Water Quality Monitoring and Assessment Report Guidance, p., Envt l Verified Petition for Writ of Mandate

14 1 Prot. Agency, Nov., 01.). Further, in an Integrated Report states should report all of the pollutants or other types of pollution for impaired or threatened AUs, and document and report any observed effects of pollution for each AU-designated use combination. (See 0 Integrated Water Quality Monitoring and Assessment Report Guidance, Appendix B pp. -, Envt l Prot. Agency, Nov., 01.) Observed effects may include; fish lesions, fish kills, stream bottom deposits, low combined biota/habitat bioassessment. (See 0 Integrated Water Quality Monitoring and Assessment Report Guidance, Appendix B p., Envt l Prot. Agency, Nov., 01.) E. The State Board s Listing Policy. The State Board adopted a Water Quality Control Policy for Developing California s Clean Water Act Section 0(d) List on September 0, 0, revisions to which were approved on May, (Listing Policy).. The Listing Policy describes the process by which the State Board and RWQCBs will comply with the listing requirements of section 0(d). The objective of the Listing Policy is to establish a standardized approach for developing California s section 0(d) list in order to achieve the overall goal of achieving water quality standards and maintaining beneficial uses in all of California s surface waters.. The Listing Policy provides that the 0(d) list only covers impairments by pollutants. But also provides that RWQCBs fact sheets supporting section 0(d) listings shall contain... [p]ollutant or type of pollution that appears to be responsible for standards exceedance.. Section of the Listing policy provides the methodology for adding or maintaining waters on California s 0(d) list.. Section. of the Listing Policy states that [a] water segment shall be placed on the section 0(d) list if the water segment exhibits significant degradation in biological populations and/or communities as compared to reference site(s) and is associated with water or sediment concentrations of pollutants including but not limited to chemical concentrations, temperature, dissolved oxygen, and trash. (Listing Policy, p..) 0. The situation-specific weight of evidence listing factor set out in Section. of the Verified Petition for Writ of Mandate 1

15 1 Listing Policy provides that when information indicates non-attainment of applicable water quality standards that the water quality standard is not attained. (See Listing Policy, p..) A situation specific weight of evidence impairment determination is to be justified by: (1) data or information including current conditions supporting the decision, () description of how that data or information affords a substantial basis in fact from which the impairment decision can be reasonably inferred, () demonstration that the weight of the evidence of the data and information indicate that the water quality standard is not attained, and () demonstration that the approach used is scientifically defensible and reproducible. (See Listing Policy, p..) 1. The Listing Policy does not govern the development of the 0(b) report.. A formal listing policy or guidance are not perquisites to the State Board s identification of waterways on the 0(d) list or the 0(b) report for California. F. CEQA. CEQA mandates that all public agencies responsible for regulating activities affecting the environment give prime consideration to preventing environmental damage. (Mountain Lion Found. v. Fish & Game Comm n () Cal.th, ; see also Pub. Res. Code 000(g).) To carry out this duty, CEQA requires an agency analyze the environmental impacts of proposed projects, examine feasible alternatives, and avoid or mitigate adverse environmental impacts whenever it is feasible to do so. (Pub. Res. Code 00.). Except as otherwise provided in this division, [the requirements of CEQA] shall apply to discretionary projects proposed to be carried out or approved by public agencies. (Pub. Res. Code 00(a).) If there is substantial evidence, in light of the whole record before the lead agency, that the project may have a significant effect on the environment, an environmental impact report shall be prepared. (Pub. Res. Code 00(d).). In certain cases, rather than prepare an Environmental Impact Report (EIR) containing such analyses, state agencies operating under their own regulatory programs, generate a... [substitute] environmental... document that serves as a functional equivalent of an EIR. (Mountain Lion, supra, Cal.th at 1; see also Pub. Res. Code 00. (a).). The lead agency shall be responsible for determining whether an environmental impact Verified Petition for Writ of Mandate

16 1 report, a negative declaration, or a mitigated negative declaration shall be required for any project which is subject to [CEQA]. That determination shall be final and conclusive on all persons, including responsible agencies, unless challenged as provided in Section. (Pub. Res. Code 00.1.). Project means an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and which is any of the following: (a) An activity directly undertaken by any public agency, (b) An activity undertaken by a person which is supported, in whole or in part, through contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies, [or] (c) An activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies. (Pub. Res. Code 0.). Lead agency means the public agency which has the principal responsibility for carrying out or approving a project which may have a significant effect upon the environment. (Pub. Res. Code 0.). Significant effect on the environment means a substantial, or potentially substantial, adverse change in the environment. (Pub. Res. Code 0.) V. Facts and Procedural Background A. Hydrological Impairments to California Waterways 0. Petitioners submitted more than sufficient data on multiple California waterways to the State Board for the State Board to find that hydromodification of these waters results in nonattainment of water quality standards. 1. The data and information submitted as Lines of Evidence to State Board are included in paragraphs -, below. The Lines of Evidence included citations and references to the underlying reports and studies containing, which are readily accessible and/or already in the State Board s possession. i. Salinas River. Around the beginning of the th century, the Salinas River and tributaries supported a large population of steelhead trout.. In the early 0s, the average Salinas steelhead run was estimated to consist of about Verified Petition for Writ of Mandate

17 1 00 individuals.. Today, only small populations of steelhead remain in a handful of the Upper Salinas tributaries. There is some suitable habitat for steelhead in the Upper Salinas Basin and possibly remnant steelhead populations.. However, habitat in the Upper Salinas is of lower quality and is less extensive than that in the Arroyo Seco and its tributaries. The Upper Salinas is also less accessible for steelhead than the Arroyo Seco.. Large-scale water storage projects on the upper mainstem Salinas River and the Nacimiento and San Antonio rivers preclude steelhead access to the majority of historical spawning and rearing habitat, and are the primary cause of the steelhead population s decline in the watershed.. Although some suitable habitat remains downstream of the Nacimiento and San Antonio dams and in several tributaries to the upper Salinas River, spawning steelhead can rarely access this habitat due insufficient migration flows.. In addition to the impacts to adult upstream migration, the Nacimiento and San Antonio dams have reduced significantly springflows such that smolts cannot migrate from upstream rearing habitat to the ocean. In the early 0 s, the Salinas River was dammed near the town of Santa Margarita to provide water for the community of San Luis Obispo. The dams are believed to be a major reason for the decline in steelhead in the Upper Salinas River.. The designated beneficial uses of the Salinas River impaired by these hydromodifications include: warm fresh water habitat; cold fresh water habitat; wildlife habitat; rare, threatened, or endangered species; migration of aquatic organisms; spawning, reproduction, and/or early development; water contact recreation; and non-contact water recreation. ii. Carmel River 0. As of, the average historical steelhead run (prior to dam construction) in the Carmel River was estimated to comprise,000 adults annually. A draft consultants report from offered the following summary of Carmel River steelhead: The Carmel River supports an annual run of steelhead that the Department of Fish and Game estimates averages about 00 adults per year. Adults...spawn in the lower Carmel between Shulte Road and the San Clemente Dam. Some climb the Verified Petition for Writ of Mandate

18 1 ladder at San Clemente, spawn in the river between the two dams or in the tributaries of that reach, and some are passed over Los Padres to spawn in the upper Carmel and its tributaries. 1. Water supply has long been recognized as a primary factor limiting the Carmel River s potential steelhead production. Water demand in the Carmel River watershed far exceeds supply, which has reduced spawning and rearing habitat, particularly in the lower ten miles of stream, and has limited upstream migration of adults and downstream emigration of juveniles.. Carmel River flows decrease in early summer, due to reduced runoff and water diversions. These diversions significantly alter the stream flows in the lower portions of the Carmel River to the extent that several miles of river are dewatered each summer and fall and a sand bar is formed at the mouth of the river.. The dewatering of the stream channel significantly reduces rearing habitat below San Clemente Dam and strands early migrating juvenile trout in isolated pools in the lower river. Fish rescue operations are conducted by the Monterey Peninsula Water Management District in an effort to mitigate for water diversions. Fish rescued are transported and released into upstream reaches of perennial stream flow. The sand bar is artificially breached each winter in order to allow the upstream migration of steelhead from the ocean.. A watershed plan prepared for the Carmel River in 0 lists additional factors that have been identified as limiting to the Carmel River steelhead population, including lack of spawning gravels in the reaches downstream of the San Clemente and Los Padres dams; lack of riparian vegetation; excess sediment deposits due to bank erosion, cattle grazing activities, and development; passage barriers; and lack of large woody debris. The report emphasizes the need to couple projects that address these problems with restoration of instream flows, stating, Dealing with dams, erosion/sedimentation, water quality for aquatic life...and riparian habitat restoration...are irrelevant if the lack of surface flow continues to be a problem.. Water development, particularly illegal underflow pumping in the lower reach of the Carmel River by the California American Water Company, has caused dewatering, a broadening of the channel, and loss of riparian habitat. As a result of over appropriation of water and the effects of drought, the Carmel River did not flow to the ocean for a four-year period from to 1. Verified Petition for Writ of Mandate

19 1. The Carmel River did not flow to the ocean for four years during drought because of surface diversions and excessive groundwater pumping, and its native steelhead population is at a critically low level.. The designated beneficial uses of the Carmel River impaired by these hydromodifications include: warm fresh water habitat; cold fresh water habitat; wildlife habitat; rare, threatened, or endangered species; migration of aquatic organisms; spawning, reproduction, and/or early development; water contact recreation; and non-contact water recreation. iii. San Clemente Creek. Erected at the confluence of the Carmel River and San Clemente Creek, the San Clemente dam essentially blocked miles of prime spawning and rearing habitat for anadromous fish, including South-Central California Coast steelhead listed as threatened under the Endangered Species Act.. It also damaged wildlife habitat by starving the downstream river of valuable sediment necessary for fish to lay their eggs in nests or redds. 0. A concrete ford on upper San Clemente Creek (Barrier -0) may present a partial barrier to migrating steelhead. Seasonal recreational dams on San Clemente and Black Rock creeks have been observed to create passage problems. 1. The designated beneficial uses of the San Clemente Creek impaired by these hydromodifications include: warm fresh water habitat; cold fresh water habitat; wildlife habitat; rare, threatened, or endangered species; migration of aquatic organisms; spawning, reproduction, and/or early development; water contact recreation; and non-contact water recreation. iv. Big Sur River. A 0 steelhead enhancement plan for the Big Sur River identified the volume and intensity of visitor use within Pfeiffer Big Sur and Andrew Molera State parks as a key limiting factor to the steelhead population in the watershed. The report states, Where visitor use is concentrated, the visible impacts to salmonid habitat occur through trail erosion, trampling of riparian and instream habitat, and construction of rock dams and channel modifications. These instream activities may result in the degradation of spawning areas in late winter through spring and obstruction of juvenile passage Verified Petition for Writ of Mandate

20 1 throughout low flow periods.. The importance of lagoons to rearing steelhead is dependent in part on the lagoon s habitat characteristics, including its persistence, area and volume, water chemistry, invertebrate prey abundance, and instream cover. These habitat characteristics are in turn affected by streamflow, particularly high flow events with associated recruitment of sediments, woody debris, and fish.. High volume groundwater extraction in the lower portion of the Big Sur impacts streamflows and essential habitat for juvenile steelhead.. On September,, pursuant to Public Resources Code sections , the California Department of Fish and Game (CDFW) adopted Instream Flow Regime Recommendations for the Big Sur River from Pfeiffer Big Sur State Park at U.S. Geological Survey (USGS) Gage 00 downstream through Molera State Park. The free-flowing, unregulated, Big Sur River was selected for development of flow recommendations because it is a significant watercourse with high resource value, and because it is an important source stream for the South-Central Coast Distinct Population Segment of south-central coast steelhead (Oncorhynchus mykiss) per the National Oceanic and Atmospheric Administration s South-Central California Steelhead Recovery Plan. Insufficient instream flow has been identified as a key factor preventing recovery of steelhead population viability in the Big Sur River.. The designated beneficial uses of the Big Sur River impaired by these hydromodifications include: warm fresh water habitat; cold fresh water habitat; wildlife habitat; rare, threatened, or endangered species; migration of aquatic organisms; spawning, reproduction, and/or early development; water contact recreation; non-contact water recreation; preservation of biological habitats of special significance; and estuarine habitat. v. Santa Maria River. Steelhead use of the Santa Maria River has been consistently documented since the late 00s, although data on historical run size estimates is lacking. The last sizeable run of steelhead was in 1 with a few adults reported in -.. Reports on the watershed indicate that the Santa Maria River is now dry a significant portion of the year and therefore does not offer substantial rearing habitat, except for the estuary, which Verified Petition for Writ of Mandate

21 1 may serve a critical function for steelhead rearing and is currently being studied as part of a larger instream flow.. The Bureau of Reclamation s Twitchell Reservoir operations (on the Cuyama River) substantially affect the hydrology of the Santa Maria River, which serves as the critical migration corridor for steelhead trout accessing habitat in the upper basin. Currently, water releases are made primarily on the basis of water supply considerations rather than habitat, and the Santa Maria River is consequently dry most of the year in most years. Groundwater withdrawals in the vicinity of the Santa Maria River also have been noted to reduce streamflow. 0. Twitchell Dam, which impounds Twitchell Reservoir, was built in and first began operation in. Flow releases from Twitchell Reservoir have reduced the number of successful opportunities for both upstream and downstream steelhead migration along the Santa Maria River. 1. Low flows may limit successful passage of steelhead trout through the Santa Maria to spawning reaches.. The range of the Southern California Coastal distinct population segment extends from the Santa Maria River in the north to the Tijuana River in the south. The National Marine Fisheries Service (NMFS) estimates that historic steelhead numbers in this distinct population segment of over,000 fish, and anglers were still catching stringer-full of steelhead in the 0s. Human development, in particular the construction and operation of dams and other water diversions, has caused this steelhead population to decline nearly %. Today only about 00 adult fish survive in the distinct population segment.. The designated beneficial uses of the Santa Maria River impaired by these hydromodifications include: warm fresh water habitat; cold fresh water habitat; wildlife habitat; rare, threatened, or endangered species; migration of aquatic organisms; water contact recreation; non-contact water recreation; and estuarine habitat. vi. Santa Clara River. The Santa Clara River is Southern California s last major free flowing waterway and is home to species listed as threatened or endangered under the state and federal Endangered Species Acts. At River mile., United Water Conservation District (United) diverts almost all of the River s Verified Petition for Writ of Mandate

22 1 flows outside of large storm events. United, the United States Geological Survey (USGS), and local agency data show that water diverted at the Vern Freeman Diversion Dam for agricultural usage, groundwater recharge, and other uses, deprive migrating steelhead of sufficient flows and juvenile steelhead of healthy estuary rearing grounds. In addition to impacting beneficial uses associated with the provision of adequate steelhead habitat, surface water withdrawals also destroy downstream native riparian and endangered bird habitat, degrade the ecological integrity of the River s estuary, and impair a plethora of cultural and recreational beneficial uses downstream.. The Santa Clara River supported a large steelhead population historically. Based on run size estimates for Matilija Creek and comparison of habitat information between Matilija Creek and the Santa Clara River watershed, one researcher projected a run of about,000 individuals.. By the run had declined sufficiently for CDFW staff to state,...there is no fishery to speak of in the Santa Clara river now although it notes that...there are some steelhead now that come up during large flows.. A - study similarly indicated that a small number of adult steelhead spawned in the Santa Clara system and that the watershed supported smolt production.. A report summarizing the results of five years of fish passage monitoring at the Vern Freeman Diversion noted that the smolts captured in likely comprised nearly all of the outmigrant steelhead. According to NMFS, less than ten adult steelhead were observed during the period from to 00.. Water diversions have been impacting Santa Clara River steelhead populations for many decades. Notes from state, Below the intake the stream goes dry as all of the water is diverted... There are many small sand diversion dams across the stream and when the steelhead start running there is sufficient flow to wash out these diversions. It is difficult for the young steelhead returning. 1. A report from 1 states, The lower reaches of the Ventura and Santa Clara Rivers are of secondary importance as a means of access by which steelhead trout migrate upstream from the ocean to headwaters tributaries. With increased water development and reduced runoff to the oceans, these runs will unfortunately continue to diminish in size and importance. 1. The Santa Clara River system includes an important water supply feature, the Vern Verified Petition for Writ of Mandate

23 1 Freeman Diversion Dam, which was constructed in 1 at about stream mile ten. A fishway was provided at the facility that became operational in 1.. The 0 Santa Clara River assessment states, While conditions are poor for spawning and sub-optimal for rearing in most reaches, the mainstem Santa Clara is a critical corridor for upstream and downstream steelhead movement. Specifically, bypass flows at the diversion dam can affect migration opportunities. 1. The designated beneficial uses of the Santa Clara River impaired by these hydromodifications include: warm freshwater habitat; cold freshwater habitat; wildlife habitat; rare, threatened, or endangered species; migration of aquatic organisms; and spawning, reproduction, and/or early development. vii. Central Valley Waters Including the Delta 1. Central Valley waters, particularly the Delta, have experienced significant flow impairments due to water diversions and projects. 1. Multiple studies and data specific to the Central Valley region indicate that fish abundance is correlated with flow; diversions and modifications have decreased flow and altered necessary aquatic habitat in Central Valley waterways; populations of fish and other aquatic species have plummeted as a result. 1. The survival of fall-run Chinook salmon smolts through the Delta between Sacramento and Suisun Bay is positively correlated to flow and negatively correlated to water temperature, which increases as flow is reduced. Smolt survival increased with increasing Sacramento River flow at Rio Vista, with maximum survival observed at or above about,000 and 0,000 cubic-feet per second (cfs) from April through June. 1. Decreases in flow through the Estuary, increased temperatures, and the proportion of flow diverted through the Delta Cross Channel and Georgiana Slough on the Sacramento River are associated with lower survival in the Delta of marked juvenile fall-run Sacramento River salmon. 1. The catch of Chinook salmon smolts at Chipps Island between April and June of to 0 was positively correlated with mean daily Sacramento River flow at Rio Vista between April and June. Verified Petition for Writ of Mandate

24 1 1. Increased reverse flows at Jersey Point reduce survival of salmon smolts migrating through the lower San Joaquin River. 1. A 0 study found strong, significant correlations over decades of monitoring to have provided powerful evidence of the relationships between the abundance of numerous Bay-Delta aquatic species and flow. 1. Diversions and modifications to Central Valley waterways have resulted in altered habitats and reduced flows that have impaired life support for fish and other aquatic species. The combined effects of water exports and upstream diversions reduced average annual net outflow (difference between the sum of freshwater inflows to the Delta and the sum of exports and net in- Delta consumptive uses) from the Delta from unimpaired conditions by % and % during the - and -0 periods, respectively. In wet years, diversions reduce outflow by to 0 percent. In dry years, diversions reduce outflow by more than 0 percent. During recent drought years, diversions reduced annual Delta outflow by more than 0 percent. Outflow reductions have primarily occurred during winter and spring, when freshwater flows are particularly important for many estuarine species. 1. Multiple studies based on readily available data (e.g., from CDFW) demonstrate that salmon abundance drops when Delta pumping increases. 1. Delta smelt require brackish habitat that forms when freshwater reaches the upper estuary in September and October for spawning. Due to increased water exports, reduced freshwater flows and therefore habitat has contributed to the decline of smelt to near extinction. 1. Adult Chinook salmon rely on fall freshwater inflows to provide adequate water quality conditions for their return migration and help orient them towards their native spawning grounds. 1. Sacramento winter-run Chinook salmon (Oncorhynchus tshawytscha) is listed as endangered pursuant to the California and federal Endangered Species Acts. Central Valley spring-run Chinook salmon (O. tshawytscha) is listed as threatened pursuant to both the California and federal Endangered Species Acts. Central Valley fall/late fall-run Chinook salmon (O. tshawytscha) are classified as species of special concern by NMFS. Central Valley steelhead (O. mykiss) is listed as threatened under the federal Endangered Species Act. Southern Distinct Population Segment of North American green sturgeon (Acipenser medirostris) is listed as threatened under the federal Endangered Verified Petition for Writ of Mandate