Filed 5/8/17 Certified for publication 5/31/17 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
COASTAL ENVIRONMENTAL RIGHTS D070171
FOUNDATION,
Plaintiff and Appellant,
(Super. Ct. No. 37-2014-00038672-
v. CU-WM-CTL)
CALIFORNIA REGIONAL WATER
QUALITY CONTROL BOARD,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Timothy B. Taylor, Judge. Affirmed.
Coast Law Group, Marco A. Gonzalez and Livia B. Beaudin for Plaintiff and
Appellant.
Kathleen A. Kenealy, Acting Attorney General, Robert W. Byrne, Carol A.
Squire, Deborah M. Fletcher and Josh Caplan, Deputy Attorneys General, for Defendant
and Respondent.
This case concerns residual pollutant discharges from public fireworks displays
over the waters of the United States within the jurisdiction of the California Regional
Water Quality Control Board, San Diego Region (the Regional Board), which includes a
large portion of San Diego County, portions of south Orange County, and the
southwestern portion of Riverside County (San Diego Region). The Regional Board
approved a National Pollutant Discharge Elimination System (NPDES) general permit for
public displays of fireworks over the region's surface waters (the Fireworks Permit).
Coastal Environmental Rights Foundation (CERF) appeals from the trial court's denial of
its petition for writ of mandamus challenging the approval of the Fireworks Permit.
CERF contends: (1) the trial court applied the wrong standard of review in denying its
petition, (2) the Fireworks Permit violates federal law regarding water quality
monitoring, and (3) the Fireworks Permit violates prohibitions in the State Water
Resources Control Board's (the State Water Board) 2009 California Ocean Plan
concerning discharges in areas of special biological significance (ASBS). We reject
CERF's arguments and affirm the judgment.
BACKGROUND
Before setting forth the factual background of this particular case, it is helpful to
summarize the statutory framework regulating water quality.
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A. Statutory Framework
In 1969, the California Legislature enacted the Porter-Cologne Water Quality
Control Act (Porter-Cologne Act) to control water quality. (Wat. Code,1 § 13000.) "The
Porter-Cologne Act created the State Water Board to formulate statewide water quality
policy and established nine regional boards to prepare water quality plans (known as
basin plans) and issue permits governing the discharge of waste." (Building Industry
Assn. of San Diego County v. State Water Resources Control Bd. (2004) 124 Cal.App.4th
866, 875 (Building Industry).) Under the Porter-Cologne Act, "[a] person discharging
waste, or proposing to discharge waste, within any region that could affect the quality of
the waters of the state" must file a report with the appropriate regional board. (§ 13260,
subd. (a)(1).) The regional board then prescribes waste discharge requirements, which
must implement any applicable water quality control plans and take into consideration the
beneficial uses to be protected. (§ 13263, subd. (a).)
In 1972, the United States Congress substantially amended the Federal Water
Pollution Control Act "by mandating compliance with various minimum technological
effluent standards established by the federal government and creating a comprehensive
regulatory scheme to implement these laws. [Citation.] The objective of this law, now
commonly known as the Clean Water Act, was to 'restore and maintain the chemical,
physical, and biological integrity of the Nation's waters.' " (Building Industry, supra, 124
Cal.App.4th at p. 872.) The Clean Water Act established a permitting system for
1 All further statutory references are to the Water Code unless otherwise indicated.
3
regulating discharges of pollutants into waters of the United States. (Ibid.) "The Clean
Water Act employs the basic strategy of prohibiting pollutant emissions from 'point
sources' unless the party discharging the pollutants obtains a permit, known as an NPDES
permit." (Ibid., fn. omitted.)
NPDES permits are issued by the United States Environmental Protection Agency
or by a state that has an approved water quality program. (Building Industry, supra, 124
Cal.App.4th at p. 873.) California obtained the required approval to issue its own
NPDES permits. (Id. at p. 875.) Thus, shortly after Congress enacted the Clean Water
Act, the California Legislature amended the Porter-Cologne Act to authorize state
issuance of NPDES permits. (Ibid.) Under the amended Porter-Cologne Act, regional
water boards must "issue waste discharge requirements . . . which apply and ensure
compliance with all applicable provisions [of the Clean Water Act], together with any
more stringent effluent standards or limitations necessary to implement water quality
control plans, or for the protection of beneficial uses, or to prevent nuisance." (§ 13377.)
Under federal regulations implementing the NPDES system of the Clean Water
Act, each NPDES permit must include monitoring requirements. (40 C.F.R. §§ 122.1(a),
122.44(i).)2 Specifically, "the Clean Water Act requires every NPDES permittee to
monitor its discharges into the navigable waters of the United States in a manner
sufficient to determine whether it is in compliance with the relevant NPDES permit.
33 U.S.C. § 1342(a)(2); 40 C.F.R. § 122.44(i)(1) . . . . That is, an NPDES permit is
2 Unless otherwise stated, all references to the Code of Federal Regulations will be
to the 2017 version.
4
unlawful if a permittee is not required to effectively monitor its permit compliance."
(Natural Resources Defense Council, Inc. v. County of Los Angeles (9th Cir. 2013) 725
F.3d 1194, 1207.) All permits must specify "[r]equired monitoring including type,
intervals, and frequency sufficient to yield data which are representative of the monitored
activity, including, when appropriate, continuous monitoring." (40 C.F.R. § 122.48(b).)
The permitting agency "has wide discretion and authority to determine monitoring
requirements in NPDES permits." (Natural Resources Defense Council, Inc. v. U.S.
E.P.A. (9th Cir. 1988) 863 F.2d 1420, 1434 (NRDC v. EPA).)
The State Water Board and the regional boards have the primary responsibility for
the coordination and control of water quality. (§ 13001.) To meet this responsibility, the
State Water Board adopted a water quality control plan for the ocean waters of the state,
known as the California Ocean Plan. (§ 13170.2, subd. (a).) The California Ocean Plan
protects "beneficial uses" of the ocean waters, including industrial water supply,
recreation, navigation, fishing, mariculture, preservation and enhancement of areas
designated as ASBS, rare and endangered species, marine habitat, fish migration, fish
spawning, and shellfish harvesting. (California Ocean Plan, § I.A.) ASBS "are those
areas designated by the State Water Board as ocean areas requiring protection of species
or biological communities to the extent that alteration of natural water quality is
undesirable." (California Ocean Plan, Appen. I.)
In general, waste should not be discharged in ASBS. "Discharges shall be located
a sufficient distance from such designated areas to assure maintenance of natural water
quality conditions in these areas." (California Ocean Plan, § E.1.) However, "Regional
5
Boards may approve waste discharge requirements or recommend certification for
limited-term (i.e. weeks or months) activities in ASBS. Limited-term activities include,
but are not limited to, activities such as maintenance/repair of existing boat facilities,
restoration of sea walls, repair of existing storm water pipes, and replacement/repair of
existing bridges. Limited-term activities may result in temporary and short-term changes
in existing water quality. Water quality degradation shall be limited to the shortest
possible time. The activities must not permanently degrade water quality or result in
water quality lower than that necessary to protect existing uses, and all practical means of
minimizing such degradation shall be implemented." (California Ocean Plan, § III.E.2.)
B. The Fireworks Permit
Fireworks are pyrotechnic devices that produce noise, light, smoke, and floating
materials. They can be grouped into general categories: (1) aerial shells (paper and
cardboard spheres or cylinders filled with pyrotechnic materials), (2) low level comet and
multishot devices, and (3) set piece displays mounted on the ground. Fireworks have
various chemical constituents that burn at high temperatures when the firework is
detonated. The chemical constituents separate from the firework's casing and internal
shell components. A combustion residue is produced in the form of smoke, airborne
particulates, chemical pollutants, and debris, including paper, cardboard, wires and fuses.
The combustion residue and unignited pyrotechnic material, including duds and misfires,
can fall into surface waters. The area impacted by fireworks residue can vary depending
on wind speed and direction, size of the shells, the angle of the mortar placement, the
type and height of fireworks explosions, and other environmental factors.
6
Before the Regional Board began considering the Fireworks Permit at issue in this
case, discharges associated with fireworks in the San Diego Region were largely
unregulated. At the time, only SeaWorld had obtained an individual fireworks discharge
permit.3 In May 2011, after issuing three drafts of the permit and considering public
comments, the Regional Board adopted the Fireworks Permit. The Fireworks Permit
applies to any person discharging pollutant waste from the public display of fireworks to
surface waters in the San Diego Region. The Fireworks Permit includes various
discharge prohibitions, including that "[t]he discharge of residual firework pollutant
waste shall not cause, have a reasonable potential to cause, or contribute to exceedances
of any applicable criterion promulgated by [the United States Environmental Protection
Agency] pursuant to section 303 of the [Clean Water Act], or water quality objective
adopted by the State Water Board or San Diego Regional Water Board."
The Fireworks Permit requires any fireworks discharger seeking coverage under
the permit to file a notice of intent no later than 60 days before the fireworks event. The
discharger must also submit a "Fireworks Best Management Practices Plan" to reduce
pollutant discharges associated with the fireworks (Management Plan). The Management
Plan must address the following elements: (1) use of alternative fireworks that burn
cleaner and reduce pollutant waste in surface waters, (2) firing ranges designed to
eliminate or reduce pollutant waste discharges to waters of the United States,
3 In contrast to an individual permit, the Fireworks Permits is a "general permit."
General permits cover categories of discharges within a geographic area. (40 C.F.R.
§ 122.28(a)(1).)
7
(3) collection, removal, and management of particulate matter and debris from ignited
and unignited pyrotechnic material no later than 24 hours following a public display of
fireworks, (4) if the fireworks are launched from barges or floating platforms, the
discharger must address related concerns, including set up, dismantling, and cleanup to
minimize pollutant discharges to the waters, (5) management and disposal of hazardous
fireworks waste immediately following public displays of fireworks, (6) collection and
disposal of nonhazardous solid waste, (7) packaging, transportation, storage, setup, and
handling of fireworks in a manner to prevent or minimize pollutant waste from entering
surface waters, and (8) locating residual firework pollutant waste discharges a sufficient
distance from ASBS.
The Fireworks Permit also addressed monitoring and reporting requirements for
dischargers of fireworks. SeaWorld, a "Category 1" discharger, must perform receiving
water and sediment monitoring and sampling. SeaWorld had conducted monitoring for
sediment and water quality since 2001 in accordance with the terms of its individual
NPDES permit. SeaWorld, unlike most other fireworks dischargers, conducts an average
of 110 to 120 fireworks events per year. Those events occur in the same general location
in Mission Bay. Thus, SeaWorld's fireworks likely represent the maximum firework
pollutant loading conditions and cumulative effects on a surface water body.
Under the Fireworks Permit, "Category 2" dischargers, which include essentially
all dischargers other than SeaWorld, are not required to perform the same monitoring and
sampling as Category 1 dischargers. Instead, the Regional Board required Category 2
dischargers to conduct visual monitoring and submit a postevent report form detailing the
8
types of fireworks used and confirming that the surface waters were inspected and
cleaned of pollutants within 24 hours following the fireworks display.
The Fireworks Permit also included special provisions for the continuation of two
once per year fireworks shows in or near ASBS. These two fireworks shows are
Independence Day fireworks events at Scripps Park in La Jolla and Heisler Park in
Orange County. The La Jolla event has occurred approximately one quarter mile from
the La Jolla ASBS since 1984. It is an event that runs 20 to 25 minutes and includes less
than 500 pounds of pyrotechnic material discharged into the air over or adjacent to the La
Jolla ASBS. The Heisler Park event runs approximately 15 minutes and includes 600
pounds of pyrotechnic material discharged over or adjacent to the Heisler Park ASBS.
Approximately 20 to 46 percent of the Heisler Park firing range is over land.
The Regional Board determined the Independence Day public fireworks displays
in or near the La Jolla ASBS and the Heisler Park ASBS are limited-term short duration
activities that qualify for an exception to the general rule prohibiting discharges in ASBS.
The Regional Board limited the La Jolla and Heisler Park approvals to single, annual
Independence Day fireworks displays at each location with net explosive weight of
fireworks under 1,000 pounds of pyrotechnic material. Further, the Regional Board
required that the areal extent of the firing range in ASBS be limited to the maximum
extent practicable to prevent or reduce residual firework pollutant waste discharges to
ASBS. The Fireworks Permit also specifies that the residual pollutant waste discharges
at the two locations cannot permanently alter natural water quality conditions in the
9
ASBS receiving waters. Temporary changes to natural ocean water quality conditions
are permissible if beneficial uses are protected.
C. Administrative and Superior Court Proceedings
After the Regional Board approved the Fireworks Permit, CERF appealed the
approval to the State Water Board. The State Water Board did not take action on CERF's
appeal for more than three years. In July 2014, CERF filed a petition for writ of mandate
against the State Water Board challenging the State Water Board's failure to act on
CERF's appeal. In October 2014, the State Water Board denied CERF's appeal.
In November 2014, CERF filed a petition for writ of mandate in the superior court
challenging the Regional Board's approval of the Fireworks Permit. In its first amended
petition, CERF alleged the Regional Board violated the Clean Water Act by failing to
require monitoring of the type, interval, and frequency sufficient to yield data
representative of the monitored activity and sufficient to assess dischargers' compliance
with the Fireworks Permit. CERF also alleged the Regional Board violated the Water
Code and the California Ocean Plan by approving discharges to the La Jolla ASBS and
Heisler Park ASBS.
In its tentative decision, the trial court set forth its standard of review by stating:
"Code of Civil Procedure section 1094.5 provides that a trial court reviewing the decision
of an administrative agency must exercise its independent judgment in reviewing the
evidence; and that an 'abuse of discretion is established if the court determines that the
findings are not supported by the weight of the evidence.' [Citation.] 'Weight of the
10
evidence' is synonymous with 'preponderance.' [Citation.]" The trial court then went on
to describe the substantial evidence standard of review.
At the hearing on the matter, the Regional Board sought to clarify the standard of
review the court had utilized in making its ruling. The Regional Board pointed out that
there was an inconsistency in the court's tentative ruling because the court set forth the
independent review standard but then went on to discuss the substantial evidence
standard. The Regional Board asked the court to confirm that it conducted an
independent review of the matter. The trial court responded by stating, "I don't know
how you could read this tentative ruling and not conclude that I independently reviewed
the facts of this case." The court went on to state that it "drill[ed] down on this, read the
record, . . . and [made its] own conclusions." The trial court pointed to a portion of the
tentative ruling in which the court discussed the difference between once per year
fireworks shows and SeaWorld's numerous shows that occur at the same location. The
court stated, "Does that sound like somebody who is just taking the Regional Board's
word for it. I think I went further than you."
After considering the administrative record and conducting an oral hearing, the
trial court confirmed its tentative ruling as the final ruling of the court and denied the
petition. The court found CERF had failed to meets it burden to establish the Regional
Board abused its discretion by "rely[ing] on visual monitoring and detailed [best
management practices] to demonstrate compliance with the permit's terms for all
dischargers other than SeaWorld." The court concluded the Regional Board
appropriately imposed different conditions and distinguished between annual event
11
fireworks dischargers and dischargers that conduct more frequent shows, such as those
put on by SeaWorld up to 150 times per year over the same part of Mission Bay. The
trial court stated that it "[chose] to defer to the far superior expertise of the [Regional
Board] in matters relating to water quality." The court also found that CERF did not
"carry its burden to demonstrate an abuse of discretion by the [Regional Board] in finding
the 'Ocean Plan' exceptions applied to the limited Fourth of July shows at or near La Jolla
Cove and Heisler Park." Lastly, as a separate and independent ground for denying the
petition, the court determined the Water Code and Clean Water Act include an implied
"Independence Day Exception" for Fourth of July fireworks shows.
DISCUSSION
I
THE TRIAL COURT'S STANDARD OF REVIEW
CERF argues the trial court applied an incorrect standard of review in considering
CERF's challenge to the Regional Board's approval of the Fireworks Permit that did not
require every permittee to conduct receiving water monitoring to assess compliance with
the permit. We reject CERF's argument.
"A party aggrieved by a final decision or order of a regional board . . . may obtain
review of the decision or order of the regional board in the superior court by filing in the
court a petition for writ of mandate." (§ 13330, subd. (b).) The petition for writ of
mandate is governed by Code of Civil Procedure section 1094.5, subdivision (c), and "the
court shall exercise its independent judgment on the evidence." (§ 13330, subd. (e).)
" 'In exercising its independent judgment, a trial court must afford a strong presumption
12
of correctness concerning the administrative findings, and the party challenging the
administrative decision bears the burden of convincing the court that the administrative
findings are contrary to the weight of the evidence.' " (Building Industry, supra, 124
Cal.App.4th at p. 879.) An "abuse of discretion is established if the court determines that
the findings are not supported by the weight of the evidence." (Code Civ. Proc., §
1094.5, subd. (c).)
The independent judgment standard in which the trial court determines whether
administrative findings are supported by the weight of the evidence differs from the
substantial evidence standard of review. (Alberda v. Board of Retirement of Fresno
County Employees' Retirement Assn. (2013) 214 Cal.App.4th 426, 435 (Alberda).) "In
substantial evidence review, the reviewing court defers to the factual findings made
below. It does not weigh the evidence presented by both parties to determine whose
position is favored by a preponderance. Instead, it determines whether the evidence the
prevailing party presented was substantial—or, as it is often put, whether any rational
finder of fact could have made the finding that was made below. If so, the decision must
stand." (Ibid.; italics omitted.) In contrast, under the independent judgment standard,
"the trial court begins its review with a presumption that the administrative findings are
correct, it does not defer to the fact finder below and accept its findings whenever
substantial evidence supports them. Instead, it must weigh all the evidence for itself and
make its own decision about which party's position is supported by a preponderance.
[Citation.] The question is not whether any rational fact finder could make the finding
13
below, but whether the reviewing court believed the finding actually was correct." (Ibid.;
italics omitted.)
"The question presented in this case—whether the trial court applied the correct
standard of review—is a question of law. We review questions of law de novo."
(Alberda, supra, 214 Cal.App.4th at p. 434.)
CERF argues the trial court improperly applied the substantial evidence standard
of review and "deferred almost wholesale to the [Regional] Board's 'expertise' " on the
permitting decision. CERF acknowledges that the trial court initially recited the correct
independent judgment standard of review, but notes that the trial court went on to cite and
discuss the substantial evidence standard. Relying on Alberda, supra, 214 Cal.App.4th at
pages 433 through 436, and Rodriguez v. City of Santa Cruz (2014) 227 Cal.App.4th
1443, 1453-1455 (Rodriguez), CERF contends the trial court's references to the
substantial evidence standard require reversal.
In Alberda, the petitioner filed a petition for writ of mandate to set aside
respondent's denial of his application for a service connected disability retirement.
(Alberda, supra, 214 Cal.App.4th at p. 428.) After the trial court denied the petition,
petitioner appealed, arguing the trial court had applied an incorrect standard of review.
(Ibid.) In that case, the trial court started its decision by stating the correct independent
judgment standard of review. (Id. at p. 434.) However, the trial court went on to state
that " 'substantial evidence supports the hearing officer's decision.' " (Ibid.) In discussing
the merits of the case, the court continued to use the phrase "substantial evidence"
numerous times and cited to authority applying the substantial evidence standard. (Id. at
14
pp. 434-435.) Based on the trial court's statement of the law coupled with its "statements
throughout the statement of decision that 'substantial evidence supports' the hearing
officer's decision or findings," the Court of Appeal concluded it was "likely the trial court
applied the substantial evidence standard of review rather than the independent judgment
standard." (Id. at p. 435.) Accordingly, the Court of Appeal remanded the matter to the
trial court to reconsider under the independent judgment standard of review. (Id. at
p. 436.)
Similarly, in Rodriguez, a police officer petitioned for writ of mandate after the
city denied his application for industrial disability retirement. (Rodriguez, supra, 227
Cal.App.4th at p. 1445.) The trial court denied the petition. (Ibid.) On appeal, petitioner
claimed the trial court applied an incorrect standard of review. (Ibid.) The trial court had
referenced "sufficient evidence" once without citation to authority. (Id. at p. 1453.)
However, "the statement of decision [left the Court of Appeal] with the distinct
impression that the trial court likely did not apply the independent judgment standard in
making its decision." (Ibid.) The Court of Appeal "reach[ed] that conclusion based on
the fact that each time the court referenced the correct independent judgment standard, it
also incorrectly stated that the [administrative law judge's] decision was entitled to
'deference.' " (Ibid.) Further, the trial court articulated no independent findings regarding
petitioner's credibility, and instead, stated that sufficient evidence supported the
administrative law judge's finding that petitioner lacked credibility. (Id. at p. 1454.)
Here, in contrast to Alberda, supra, 214 Cal.App.4th 426 and Rodriguez, supra,
227 Cal.App.4th 1446, the trial court's order does not demonstrate that it applied an
15
incorrect standard of review. The trial court initially set forth the correct independent
judgment standard. Although the trial court later set forth the "substantial evidence"
standard and stated that it chose "to defer to the far superior expertise of the [Regional
Board] in matters relating to water quality," it is clear that the trial court independently
reviewed and weighed the evidence. For example, the trial court considered the evidence
regarding the differences in scale, frequency, and location of SeaWorld's numerous
fireworks shows as compared to other fireworks dischargers. Based on the distinctions,
the trial court found the Regional Board properly exercised its discretion to distinguish
between SeaWorld and other dischargers and varied permit conditions accordingly.
Moreover, unlike Alberda and Rodriguez, the trial court clarified during the hearing on
the matter that it independently reviewed the facts, made its own conclusions, and did not
"just [take] the Regional Board's word for it." Reading the record and trial court's order
as a whole, the trial court's decision is distinctly different from that of the trial courts in
Alberda and Rodriguez. Unlike those cases, the trial court's decision here reflected that
the court applied the independent judgment standard, which the court confirmed at the
oral proceedings.
We also reject CERF's argument that the record reflects the trial court did not
independently and fully examine CERF's petition. CERF contends the trial court did not
recognize that CERF alleged two causes of action, one concerning monitoring of all
fireworks discharges within the Regional Board's jurisdiction and the other concerning
two particular shows (La Jolla and Heisler Park) in or near ASBS. While the court stated
that CERF's petition focused on the La Jolla and Heisler Park shows, it also discussed
16
other shows within the San Diego Region. Further, both parties informed the court that
CERF was challenging the Fireworks Permit because it did not require receiving water
monitoring for all permittees. After considering the evidence and the parties' arguments,
the trial court concluded that the Regional Board did not abuse its discretion in drawing a
distinction between SeaWorld's frequent shows and other dischargers. The trial court
specifically concluded CERF failed to carry its burden to demonstrate the Regional Board
abused its discretion "to rely on visual monitoring and detailed [best management
practices] to demonstrate compliance with the permit's terms for all dischargers other
than SeaWorld." Accordingly, the trial court considered and ruled on the Fireworks
Permit as it relates to all shows in the San Diego Region.
II
MONITORING REQUIREMENTS
CERF argues that had the trial court applied the independent judgment standard, it
would have concluded the Fireworks Permit does not comply with the Clean Water Act's
monitoring requirements. Specifically, CERF contends the Fireworks Permit violates the
Clean Water Act because it lacks monitoring sufficient to assure compliance with the
permit's terms; the Regional Board had no reasonable basis to conclude the Fireworks
Permit's best management practices will adequately control and abate the discharge of
residual pollutant waste from public fireworks events because data from SeaWorld's
monitoring of receiving waters showed exceedances of water quality standards despite
implementation of best management practices; although the Regional Board concluded
large fireworks events resulted in levels of pollutants above water and sediment quality
17
objectives, it failed to require monitoring for all large events and intermediate events for
which it had no data; and the Fireworks Permit's monitoring and reporting program fails
to fulfill its purpose of preventing exceedances in both San Diego Bay and Mission Bay.
Having found that the trial court applied the appropriate independent judgment
standard, we review its factual determinations under the substantial evidence standard
and its legal determinations under the de novo standard. (Building Industry, supra, 124
Cal.App.4th at p. 879; Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824.) "[W]e are
not bound by the legal determinations made by the state or regional agencies or by the
trial court. [Citation.] But we must give appropriate consideration to an administrative
agency's expertise underlying its interpretation of an applicable statute." (Building
Industry, supra, at p. 879.)
A. Clean Water Act's Monitoring Requirements
Under federal regulations implementing the Clean Water Act, NPDES permits
must have monitoring requirements "to assure compliance with permit limitations."
(40 C.F.R. § 122.44(i)(1).) All permits must specify "[r]equired monitoring including
type, intervals, and frequency sufficient to yield data which are representative of the
monitored activity including, when appropriate, continuous monitoring." (40 C.F.R.
§ 122.48(b).)
As the permitting agency, the Regional Board has wide discretion to determine
monitoring requirements. (See NRDC v. EPA, supra, 863 F.2d at p. 1434; Webb v.
Gorsuch (1983) 699 F.2d. 157, 161.)
18
The Clean Water Act does not specify particular monitoring methods. In NRDC v.
EPA, the Ninth Circuit Court of Appeals considered a challenge to the EPA's approval of
a NPDES permit relating to the discharge of pollutants from oil and gas operations in the
Gulf of Mexico. (NRDC v. EPA, supra, 863 F.2d at p. 1424.) The permit "prohibit[ed]
the discharge of drill cuttings generated during the use of oil-based muds because the oil
within the cuttings are conventional pollutants." (Id. at p. 1433.) The petitioners
"object[ed] to the use of a visual sheen test as a method of monitoring compliance with
the prohibition on the discharge of free oil." (Ibid.) The visual sheen test is " 'a visual
observation of the receiving water' after drilling fluids are discharged, to determine if a
sheen results on the surface of the water." (Ibid.) The Ninth Circuit upheld the visual
monitoring method because it was a " 'generally valid and useful standard' in other
contexts" and the Environmental Protection Agency "has wide discretion and authority to
determine monitoring requirements in NPDES permits." (Id. at pp. 1433-1434; see also
Webb v. Gorsuch, supra, 699 F.2d at p. 161 ["EPA's failure to require biological
monitoring was not arbitrary or capricious since the Clean Water Act gives EPA
discretion to require such monitoring."].)
Here, CERF objects to the use of visual monitoring to assess compliance with the
Fireworks Permit. CERF contends that in order to comply with the Clean Water Act, the
Fireworks Permit was required to mandate receiving water monitoring for all dischargers,
such as the requirements imposed on SeaWorld, to assess whether fireworks discharges
resulted in exceedances of water quality standards. The Regional Board determined that
proper implementation of the best management practices set forth in the Fireworks
19
Permit, including visual monitoring, would adequately control and abate the discharge of
pollutant wastes from fireworks events over the region's surface waters.
In reaching its conclusion, the Regional Board considered various factors,
including existing data from SeaWorld's monitoring, which showed that it was unlikely
that any single fireworks event smaller than SeaWorld's major Fourth of July and Labor
Day events would causes exceedances in water quality criteria. The Regional Board
recognized, however, that the continuous discharge of fireworks from large events and
cumulative discharges from smaller events could result in pollutant accumulation. The
Regional Board also considered that "[t]he receiving water fallout area affected by the
fireworks residue can vary depending on wind speed and direction, size of the shells, the
angle of mortar placement, the type and height of firework explosions and other
environmental factors." Further, wide dispersion of firework constituents from wind,
tidal effects, and other factors, along with pollution from other sources, make detection of
residual firework pollutant waste difficult.
CERF has not pointed to any authority, and we have found none, suggesting that
visual monitoring is an invalid monitoring method under the Clean Water Act. To the
contrary, relevant authority indicates that the permitting agency has wide discretion in
developing and imposing monitoring requirements and can rely on visual monitoring in
appropriate contexts. (See NRDC v. EPA, supra, 863 F.2d. at pp. 1433-1434.) Based on
the Regional Board's wide discretion, the data before it, and the various factors impacting
the dispersion and detection of residual fireworks pollutants, we conclude the Regional
Board acted reasonably in deciding to rely on best management practices and visual
20
monitoring as a method for assessing compliance with the Fireworks Permit. CERF has
failed to show that the Regional Board's decision to rely on visual monitoring and best
management practices was legally or factually unsupported.
B. Best Management Practices
CERF contends the Regional Board had no reasonable basis to conclude the
Fireworks Permit's best management practices will adequately control and abate the
discharge of residual pollutant waste from public fireworks events. Specifically, CERF
argues the only available data, which was from SeaWorld's monitoring of receiving
waters under SeaWorld's individual NPDES permit, showed exceedances of water quality
standards despite implementation of best management practices. We reject CERF's
arguments.
Under the terms of its individual NPDES permit, SeaWorld was subject to best
management practices. SeaWorld's practices included sweeping the fireworks discharge
zone, gathering floating debris using hand held fishnets, sweeping the surface of the
fireworks barge immediately after shows to prevent solid waste and debris from being
swept into the water by wind, collecting, handling and disposing of unexploded
fireworks, and picking up fireworks debris on the nearby shoreline every morning
following each aerial fireworks display.
SeaWorld has monitored the potential effects of its fireworks displays on both
water and sediments in Mission Bay since 2001 and conducted a detailed analysis in
2006. SeaWorld conducted water chemistry sampling of both its regular events, which
typically involve detonation of 200 pounds of net explosive weight, and its larger Fourth
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of July and Labor Day events, which involve approximately 1,000 pounds of net
explosive weight per event. In considering the Fireworks Permit at issue in this case, the
Regional Board reviewed and considered SeaWorld's data.
SeaWorld's regular events showed little evidence of pollutants within the receiving
water column at levels above applicable water quality criteria. SeaWorld's water
chemistry sampling after its larger Fourth of July and Labor Day fireworks events
showed receiving waters in the fallout area exceeded both water quality criteria and
levels documented at reference sites. "Pollutants such as arsenic, copper, mercury, tin,
zinc and phosphorous were detected at levels above water quality criteria or at elevated
levels compared to the reference sites. However, only phosphorous exceeded
instantaneous water quality criteria." The Regional Board concluded, based on the data
before it, that it is unlikely any single fireworks event smaller than SeaWorld's Fourth of
July and Labor Day events would cause exceedances of applicable water quality criteria,
but cumulative discharges may cause pollutant accumulation in bay sediments.
There is no indication in the record that any exceedances in the water quality
criteria resulted from ineffective best management practices. While SeaWorld was
subject to best management practices under its individual NPDES permit, water
chemistry sampling of SeaWorld's regular events showed little evidence of pollutants
within receiving waters above applicable water quality criteria. Following large events,
only one element exceeded instantaneous water quality criteria. Although there were
elevated levels of pollutants within the fireworks fallout area relative to reference sites,
the elevated levels were primarily after large events and below applicable water quality
22
criteria. Further, the evidence before the Regional Board showed that other factors, such
as the frequency, location, and unique characteristics of SeaWorld's events, may have
impacted water quality.
Unlike typical single event dischargers, SeaWorld conducts up to 150 fireworks
events per year in the same general location from a barge in Mission Bay. SeaWorld has
put on more than 3,500 fireworks shows since 1985. Mission Bay is unique due to the
restricted circulation of waters within the bay and the shallow depth of the bay in the
vicinity of the fireworks events. As a result of these factors, the Regional Board
determined SeaWorld's events represent the maximum firework pollutant loading
conditions and cumulative effects on a surface water body. This conclusion was
supported by the evidence.
Additionally, as the Regional Board notes, the best management practices required
under SeaWorld's individual NPDES permit are not identical to those contained in the
Fireworks Permit at issue here. In addition to requiring fireworks dischargers to sweep
debris following events, permittees under the Fireworks Permit must consider use of
alternative fireworks and firing ranges to reduce pollutant waste in surface waters and
management and handling of the fireworks in a manner that minimizes the risk of
pollutant waste from entering surface waters.
Contrary to CERF's argument, the evidence supported the Regional Board's
decision to treat SeaWorld differently from other fireworks dischargers in the region.
SeaWorld's fireworks events present exceptional and maximum pollutant circumstances
because of the combined impact of their frequency, location in a shallow portion of the
23
bay, and restricted water circulation in the area. Even with these combined factors,
SeaWorld's regular events showed little evidence of pollutants above applicable water
quality criteria. Based on the evidence before the Regional Board concerning water
quality sampling and the difficulty in monitoring firework pollutant waste because of the
wide dispersion of firework constituents from wind, tidal effects, and other factors, along
with pollution from other sources, the Regional Board appropriately declined to require
all dischargers to conduct receiving water monitoring.
C. Requirements Imposed on Other Large and Intermediate Level Shows
CERF argues that although the Regional Board concluded large fireworks events
resulted in levels of pollutants above water and sediment quality objectives, it failed to
require monitoring for all large events and intermediate events for which it had no data.
In particular, CERF contends the Regional Board should have required receiving water
monitoring for intermediate level shows, such as those conducted in La Jolla and Heisler
Park, because they exceeded the 200-pound threshold of SeaWorld's regular shows and
the Regional Board did not have any data to presume the intermediate level shows would
not negatively impact water quality. Pointing to the Big Bay Boom fireworks show in
San Diego Bay, CERF further contends that the Regional Board should have required
receiving water monitoring for all large fireworks shows other than SeaWorld's events.
CERF's arguments are not persuasive. The shows that CERF points to are limited
events that take place once per year on the Fourth of July. The La Jolla and Heisler Park
shows each involve 600 pounds or less of net explosive weight. Further, 20 to 46 percent
of the Heisler Park show occurs over land.
24
Although water chemistry sampling after SeaWorld's large fireworks events,
which involved 1,000 pounds of net explosive weight, showed the receiving waters
exceeded water quality criteria and levels documented at reference sites, SeaWorld's
events had numerous unique factors that may have contributed to the results. For
example, SeaWorld conducted frequent shows in the same shallow location of Mission
Bay with restricted water circulation. CERF does not point to evidence that the Heisler
Park and La Jolla events had the same or similar characteristics to the location and
frequency of SeaWorld's events. Additionally, the water chemistry sampling showed
only one element exceeded instantaneous water quality criteria after large events.
SeaWorld's regular events involving 200 pounds of net explosive weight did not result in
pollutants within the receiving water column at levels above applicable water quality
criteria. The evidence before the Regional Board supported its conclusion that "it is
unlikely that single fireworks events of a smaller size than SeaWorld's Fourth of July and
Labor Day events would cause exceedances of applicable water quality criteria in the
water column of receiving waters." Accordingly, the Regional Board reasonably did not
subject intermediate level shows to receiving water monitoring.
Similarly, CERF's argument concerning the Big Bay Boom lacks merit. The Big
Bay Boom is a Fourth of July fireworks event in San Diego Bay. It involves fireworks
discharged from four barges that are more than one mile apart. CERF contends the Big
Bay Boom involves 18,040 shells, making the fireworks discharged from each barge an
event comparable to or exceeding SeaWorld's large Fourth of July and Labor Day events.
However, at the hearing on the Fireworks Permit before the Regional Board, the producer
25
of the Big Bay Boom stated that each barge involves approximately 850 pounds of
fireworks. Thus, the Big Bay Boom is not similar to SeaWorld's Fourth of July and
Labor Day events because the Big Bay Boom involves discharges from multiple barges
spread out in San Diego Bay and each barge is under the 1,000 pounds discharged at
SeaWorld's large events.
D. Monitoring and Reporting Program's Purpose
CERF argues the Fireworks Permit's monitoring and reporting program does not
fulfill its purpose to prevent exceedances of the receiving water and sediment quality
limitations in the permit for discharges in both San Diego Bay and Mission Bay. CERF's
argument focuses on the lack of monitoring required for shows in San Diego Bay, such as
the Big Bay Boom. Specifically, CERF contends that because of the various factors
affecting a firework event's impact to receiving water, such as frequency of events,
amount of fireworks per event, perchlorate oxidation, wind direction and velocity,
SeaWorld's data could not be extrapolated to San Diego Bay.
As we previously explained, the Big Bay Boom in San Diego Bay is easily
distinguishable from SeaWorld's fireworks events based on the frequency of SeaWorld's
events and location in Mission Bay with unique characteristics. CERF does not point to
any evidence to suggest that annual or limited fireworks events in San Diego Bay that do
not reach the 1,000 pounds of net explosives of SeaWorld's large events would impact
water or sediment quality to a degree that requires the same level of monitoring imposed
on SeaWorld. Instead, the evidence before the Regional Board supports its conclusion
26
that single fireworks events smaller than SeaWorld's Fourth of July and Labor Day events
would not cause exceedances of applicable water quality criteria.
III
LA JOLLA AND HEISLER PARK ASBS
CERF argues the Regional Board's approval of discharges into the La Jolla and
Heisler Park ASBS violates prohibitions in the California Ocean Plan. Specifically,
CERF contends the California Ocean Plan generally prohibits discharges to ASBS and,
under the doctrine of ejusdem generis, the exception for limited-term activities does not
apply to fireworks events. CERF further contends the Regional Board failed to meet the
terms of the exception and the Fireworks Permit's best management practices. CERF's
arguments are unavailing.
The California Ocean Plan prohibits waste discharges to ASBS. (California Ocean
Plan, § III.E.1.) "Discharges shall be located a sufficient distance from such designated
areas to assure maintenance of natural water quality conditions in these areas."
(California Ocean Plan, § III.E.1.) However, the California Ocean Plan contains an
exception for limited-term activities in ASBS. "Limited-term activities include, but are
not limited to, activities such as maintenance/repair of existing boat facilities, restoration
of sea walls, repair of existing storm water pipes, and replacement/repair of existing
bridges. Limited-term activities may result in temporary and short-term changes in
existing water quality. Water quality degradation shall be limited to the shortest possible
time. The activities must not permanently degrade water quality or result in water quality
27
lower than that necessary to protect existing uses, and all practical means of minimizing
such degradation shall be implemented." (California Ocean Plan, §III.E.2.)
The Regional Board utilized the "limited-term" exception to approve the annual
Fourth of July public fireworks displays near the La Jolla ASBS and in the Heisler Park
ASBS. The La Jolla event is a 20 to 25 minute show that takes place approximately one
quarter mile from the La Jolla ASBS, but its fireworks fallout area may extend into
portions of the ASBS. The Heisler Park event is a 15 minute show that takes place over
or adjacent to the Heisler Park ASBS, with 20 to 46 percent of the firing range over land.
Relying on the principle of ejusdem generis, CERF contends the State Water
Board intended to limit the exception for discharges in ASBS to infrastructure projects or
other activities similar to maintenance/repair of existing boat facilities, restoration of sea
walls, repair of existing storm water pipes, and replacement/repair of existing bridges.
"The principle of ejusdem generis instructs that 'when a statute contains a list or
catalogue of items, a court should determine the meaning of each by reference to the
others, giving preference to an interpretation that uniformly treats items similar in nature
and scope. [Citations.]' [Citations.] 'Ejusdem generis applies whether specific words
follow general words in a statute or vice versa. In either event, the general term or
category is "restricted to those things that are similar to those which are enumerated
specifically." ' " (Pour Le Bebe, Inc. v. Guess? Inc. (2003) 112 Cal.App.4th 810, 826-
827.)
In Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 141 (Kraus),
our high court considered whether a nonrefundable security and administrative fee was a
28
"security" as defined by Civil Code section 1950.5. That statute defined "security" as
"any payment, fee, deposit, or charge, including, but not limited to, any of the following:
[four examples]." (Kraus, supra, at p. 139.) All four examples set forth in the definition
of "security" were "charges intended to secure the landlord against future tenant
defaults." (Id. at p. 141.) Applying the principle of ejusdem generis and reading the
statute as a whole, the court concluded that "even though a security is not limited to the
examples set out in [the statute], a security is limited to charges imposed to secure the
landlord against future tenant defaults." (Ibid.)
Here, the "limited-term" exception in the California Ocean Plan provided
examples of "limited-term activities," including, but not limited to, "activities such as
maintenance/repair of existing boat facilities, restoration of sea walls, repair of existing
storm water pipes, and replacement/repair of existing bridges." (California Ocean Plan,
§ III.E.2.) First, the plain language of the exception provides that it is not limited to the
particular activities set forth therein. Instead, the delineated activities are merely
examples. Further, unlike Kraus, supra, 23 Cal.4th 116, in addition to providing
examples of "limited-term activities," the provision in this case sets forth various criteria
for the exception to apply. For example, the activity must be for a limited-term (i.e., not
more than weeks or months), water quality degradation must be for the shortest time
possible, the activity must not permanently degrade water quality, and all practical means
of minimizing such degradation shall be implemented. (California Ocean Plan, § III.E.2.)
Reading the limited-term exception as a whole, we conclude it is not limited to short-term
necessary infrastructure projects as CERF suggests. Rather, in order for the Regional
29
Board to apply the exception, it must determine whether the activity meets the criteria for
the exception to apply.
We also reject CERF's argument that the Regional Board's application of the
limited-term exception to annual Fourth of July fireworks displays in or near the La Jolla
ASBS and Heisler Park ASBS conflicts with the California Ocean Plan and the Fireworks
Permit's best management practices. In particular, CERF contends that, contrary to the
California Ocean Plan and Firework Permit's best management practices, the Regional
Board made no effort to ensure that the La Jolla and Heisler Park dischargers located the
events a sufficient distance from areas designated as ASBS, designed firing ranges to
eliminate or reduce residual pollutant waste discharges to waters of the United States,
limited the aerial extent of the firing range in the ASBS to the maximum extent
practicable, limited water degradation to the shortest possible time, and implemented all
practical means to minimize water degradation.
CERF fails to acknowledge that the Fireworks Permit specifically subjects the La
Jolla and Heisler Park events to the best management practices imposed on all
dischargers and special conditions to comply with the California Ocean Plan. Further,
the Regional Board exercised its discretion to approve the events under the limited-term
activity exception in the California Ocean Plan. The activities comply with the
requirements of the exception because they occur only once per year, the shows would
not permanently degrade water quality and the events are subject to proper
implementation of best management practices in order to minimize residual firework
pollutant waste discharges to ASBS.
30
Based on the foregoing, we conclude CERF failed to show the Regional Board's
application of the limited-term activity exception to the Fourth of July events at or near
the La Jolla ASBS and Heisler Park ASBS was legally or factually unsupported.
Lastly, we need not reach CERF's argument that the trial court erred in finding an
implied "Independence Day Exception" in the Water Code and Clean Water Act. "A
judgment correct on any legal basis need not be overturned because the court relied on an
allegedly erroneous reason." (Waldsmith v. State Farm Fire & Casualty, Co. (1991) 232
Cal.App.3d 693, 698, citing D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1,
19.)
DISPOSITION
The judgment is affirmed. Respondent is entitled to costs on appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES, J.
HALLER, J.
31
Filed 5/31/17
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
COASTAL ENVIRONMENTAL RIGHTS D070171
FOUNDATION,
Plaintiff and Appellant,
(Super. Ct. No. 37-2014-00038672-
v. CU-WM-CTL)
CALIFORNIA REGIONAL WATER
QUALITY CONTROL BOARD,
Defendant and Respondent.
THE COURT:
The opinion filed May 8, 2017, is ordered certified for publication.
HUFFMAN, Acting P. J.
Copies to: All parties