CSPA and ELF Sue Regional Water Board Over Tracy Discharge Permit

CSPA and Environmental Law Foundation Sue Regional Water Board Over Tracy Discharge Permit

Permit authorizes massive increase in pollutants discharged to degraded Delta

Stockton, CA – Thursday, June 18, 2009 -- Today, the California Sportfishing Protection
Alliance (CSPA) and the Environmental Law Foundation (ELF) filed a lawsuit against the
Central Valley Regional Water Quality Control Board (Regional Board) for issuing a permit to
the City of Tracy allowing increased discharges of polluted wastewater to the seriously degraded
Sacramento-San Joaquin River Delta. The Complaint, filed in Sacramento Superior Court,
alleges the Regional Board failed to comply with fundamental state and federal antidegradation
requirements in issuing the Tracy wastewater discharge permit.

“The Tracy permit is a poster-child of the state’s failure to comply with laws designed to protect
the water quality and fisheries of the Delta,” said CSPA Executive Director Bill Jennings.
“Antidegradation requirements are fundamental to protecting the estuary and the Regional
Board, under pressure from dischargers, has abdicated its responsibility to protect the people and
environment of California,” he said.

Erin Ganahl, an attorney with ELF observed that, “at a time when Delta water quality is
deteriorating and Delta smelt and other fish species are hovering on the brink of extinction, the
Regional Board’s actions in allowing massive increases in the discharge of toxic pollutants in
violation of state and federal statutes are simply unacceptable.”

The Regional Board issued the permit in May of 2007 and CSPA and ELF appealed it to the
State Water Resources Control Board (State Board). The State Board reviewed the appeals and,
on 19 May 2009, remanded the permit back to the Regional Board to correct several deficiencies
(i.e., final limits for salinity, ammonia, narrative toxicity and elimination of a dilution credit).
However, the Board dismissed core claims that addressed Tracy’s degrading pollution and the
antidegradation laws by suggesting that the Board was considering a revision to the
antidegradation policy, apparently believing that voicing consideration of modifying a policy
excuses compliance in the meantime.

Antidegradation provisions of the Clean Water Act and the state’s Porter-Cologne Water Quality
Control Act were established to prevent degradation of waters beyond certain levels. In other
words they establish a floor beyond which degradation is simply not allowed. For lesser degrees
of degradation, the provisions explicitly mandate that permitting agencies must perform a
detailed socioeconomic and alternatives analysis of potential degradation from the proposed
action and make findings, supported by evidence, that any degradation is justified by important
social or economic development. The Regional Board refused to conduct the required
antidegradation socioeconomic and alternatives analyses for the Tracy permit even though it
allowed major increases in pollutant loading.

Without benefit of an adequate antidegradation analysis, the Tracy permit allows the City to
discharge 78% more aluminum, 62% more arsenic, 78% more barium, 54% more copper, 77%
more fluoride, 78% more iron, 79% more lead, 14% more nickel, 114% more silver, 88% more
thallium, 75% more zinc, 78% more MBAS, 78% more Nitrate (N), 77% more phosphorus, 78%
more chloroform, 74% more dibromochloromethane, 77% more MTBE and 78% more 2,4-D.
Additionally, there was no evaluation of increased toxicity caused by additive or synergistic
interactions between metals.

The Delta is one of the most degraded and polluted waterbodies in the Central Valley. It is listed
as an “impaired waterbody” and Toxic Hot Spot” under state and federal law and its aquatic
ecosystem is collapsing. Toxicity from pollutants, along with water exports, have been identified
by state and federal scientists as one of the principle causes for the catastrophic collapse of the
Delta’s pelagic (i.e., Delta smelt, splittail, threadfin shad, longfin smelt, striped bass) and
salmonid (steelhead, sturgeon and winter, spring and fall-run Chinook salmon) fisheries.

Michael Lozeau, an attorney representing CSPA, stated that, “As the Delta’s water quality
continues to decline, the Regional Board is opening the pollution spigots more rather than
ensuring that the Delta’s cities and industries take steps to reduce their already dangerous levels
of pollution. California’s water quality law is supposed to protect water quality, not shield
polluters from its requirements.”
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CSPA Petition for Writ of Mandate

Contact Information
Bill Jennings, CSPA Executive Director: 209-464-5067, Cell 209-938-9053, deltakeep [at] aol.com
Erin Ganahl, Environmental Law Foundation, 510-208-4555, Cell 510-898-8620 eganahl [at] envirolaw.org
Michael Lozeau, Lozeau/Drury LLP, 510-749-9102-2#, Cell 415-596-5318, michael [at] lozeaudrury.com