Filed 12/5/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

MONTEREY COASTKEEPER,

Plaintiff and Appellant,

v.

MONTEREY COUNTY WATER 

RESOURCES AGENCY,

Defendant and Appellant.

 H042623

 (Monterey County

 Super. Ct. No. M108858)

I. INTRODUCTION

Monterey County Water Resources Agency (MCWRA) is a flood control and 

water agency that was created by the Monterey County Water Resources Agency Act

to control flood and storm waters within the County of Monterey and to conserve those 

waters for beneficial and useful purposes. (West’s Ann. Wat. Appen. (2017) § 52-3 

et seq.)

Monterey Coastkeeper, an entity self-described as “a program of The Otter 

Project, a non-profit organization,” filed a verified petition for writ of mandate against 

MCWRA in the superior court. Monterey Coastkeeper alleged in the petition’s first 

cause of action that MCWRA had violated the Porter-Cologne Water Quality Control Act 

(Porter-Cologne Act; Wat. Code, § 13000 et seq.1) by failing to file a report of waste 

discharge with respect to its discharges of agricultural pollutants into the Reclamation 

 

1 All further statutory references are to the Water Code unless otherwise indicated.
2

Ditch and the Blanco Drain. Monterey Coastkeeper also asserted a second cause of 

action for violation of section 13264 of the Porter-Cologne Act (failure to comply with 

regional board requirements for a new or changed waste discharge); a third cause of 

action for violation of section 13247 of the Porter-Cologne Act (failure to comply with 

the applicable water quality plan); a fourth cause of action for breach of fiduciary duty 

alleging that MCWRA has breached its duty under the public trust doctrine by 

discharging agricultural pollutants into the Reclamation Ditch and the Blanco Drain; and 

a fifth cause of action for abatement of a public nuisance.

The trial court granted Monterey Coastkeeper’s petition for writ of mandate as to 

the first cause of action for violation of section 13260 of the Porter-Cologne Act (failure 

to file a report of waste discharge) and denied the petition as to the fourth cause of action 

for breach of fiduciary duty under the public trust doctrine. The remaining causes of 

action were abandoned by Monterey Coastkeeper.

A peremptory writ of mandate pursuant to Code of Civil Procedure section 1085 

was entered on June 4, 2015. The writ commands MCWRA “to prepare and file a report 

of waste discharge under . . . section 13260 of the Porter-Cologne Act with the Central 

Coast Regional Water Quality Control Board for its activities in and around the 

Reclamation Ditch and Blanco Drain watersheds . . . .”

On appeal, MCWRA contends that Monterey Coastkeeper’s writ petition should 

be denied because Monterey Coastkeeper failed to exhaust its administrative remedy 

under the Porter-Cologne Act. For the reasons stated below, we agree. We will therefore

reverse the judgment granting the petition for writ of mandate and direct the trial court to 

enter a judgment denying the petition.

Monterey Coastkeeper has filed a cross-appeal contending that the trial court erred 

in denying its writ petition as to the fourth cause of action alleging that MCWRA has 

breached its fiduciary duty under the public trust doctrine by discharging agricultural 

pollutants into the Reclamation Ditch and the Blanco Drain. As we will further explain, 
3

we do not reach this issue because it is not ripe for adjudication in the absence of 

Monterey Coastkeeper’s exhaustion of its administrative remedy with respect to 

MCWRA’s alleged waste discharges.

II. THE PORTER-COLOGNE ACT

Since the issues in MCWRA’s appeal arise from provisions of the Porter-Cologne 

Act, we provide a brief overview of the Act.

“California’s Porter-Cologne . . . Act (. . . § 13000 et seq.) was enacted in 1969. It 

established the State Water Resources Control Board (State [Water] Board), along with 

nine regional water quality control boards, and gave those agencies ‘primary 

responsibility for the coordination and control of water quality.’ (. . . § 13001; [citation].)

The State [Water] Board establishes statewide policy. The regional boards formulate and 

adopt water quality control plans and issue permits governing the discharge of waste.[2]

[Citation.]” (Department of Finance v. Commission on State Mandates (2016) 1 Cal.5th 

749, 755-756 (Dept. of Finance).)

“The Porter-Cologne Act requires any person discharging, or proposing to 

discharge, waste that could affect the quality of state waters to file a report with the 

appropriate regional board. (. . . § 13260, subd. (a)(1).) The regional board then ‘shall 

prescribe requirements as to the nature’ of the discharge, implementing any applicable 

water quality control plans. (. . . § 13263, subd. (a).) The Operators must follow all 

requirements set by the Regional Board. (. . . §§ 13264, 13265.)” (Dept. of Finance, 

supra, 1 Cal.5th at p. 756.) The appropriate regional board in the present case is the 

 

2

The term “waste” is defined in the Porter-Cologne Act as follows: “ ‘Waste’ 

includes sewage and any and all other waste substances, liquid, solid, gaseous, or 

radioactive, associated with human habitation, or of human or animal origin, or from 

any producing, manufacturing, or processing operation, including waste placed within 

containers of whatever nature prior to, and for purposes of, disposal.” (§ 13050, 

subd. (d).)
4

California Regional Water Quality Control Board, Central Coast region (Regional 

Board). (§§ 13203, 13200, subd. (c).)3

III. FACTUAL AND PROCEDURAL BACKGROUND

A. Writ Petition

In 2010 Monterey Coastkeeper filed a verified petition for writ of mandate against 

MCWRA that included a “complaint for declaratory judgment” in the superior court. 

Monterey Coastkeeper alleged in the petition that MCWRA is “the primary water 

management agency for Monterey County” and that MCWRA has “broad powers to 

manage water supply and water quality in Monterey County.” Those powers included, 

according to Monterey Coastkeeper, the operation of two “wastewater conveyance 

facilities” known as the Reclamation Ditch and the Blanco Drain.

Monterey Coastkeeper further alleged in its petition that the Reclamation Ditch 

collects contaminated agricultural wastewater from adjacent farmland, which is 

discharged into the Tembladero Slough and from there flows into the Salinas River, the 

Elkhorn Slough, and eventually the Pacific Ocean. The Blanco Drain allegedly collects 

contaminated irrigation water from adjacent farmland that is pumped into the Salinas 

River.

According to Monterey Coastkeeper, MCWRA has not instituted measures to 

mitigate the contamination of surface waters caused by its operation of the Reclamation 

Ditch and the Blanco Drain, has not submitted a report of waste discharge to the Regional 

Board as required under the Porter-Cologne Act, and has violated its public trust 

obligation under state law.

 

3

Section 13200, subdivision (c) provides that the Central Coast region “comprises 

all basins, including Carrizo Plain in San Luis Obispo and Kern Counties, draining into 

the Pacific Ocean from the southerly boundary of the watershed of Pescadero Creek in 

San Mateo and Santa Cruz Counties to the southeasterly boundary, located in the 

westerly part of Ventura County, of the watershed of Rincon Creek.”
5

Based on these and other allegations, Monterey Coastkeeper asserted causes of 

action for (1) violation of section 13260 of the Porter-Cologne Act (failure to file a report 

of waste discharge); (2) violation of section 13264 of the Porter-Cologne Act (failure to 

comply with Regional Board requirements for a new or changed waste discharge); 

(3) violation of section 13247 of the Porter-Cologne Act (failure to comply with the 

applicable water quality plan); (4) breach of fiduciary duty under the public trust 

doctrine; and (5) abatement of a public nuisance.

As a remedy, Monterey Coastkeeper sought a declaration that MCWRA’s 

discharge of agricultural pollutants into the Reclamation Ditch and the Blanco Drain 

violated its duty under the public trust doctrine and constituted a public nuisance. In 

addition, Monterey Coastkeeper sought a writ of mandate under Code of Civil Procedure 

section 1085 compelling MCWRA to cease discharging until all waste discharges were 

compliant with the law.

MCWRA filed points and authorities in opposition to Monterey Coastkeeper’s 

writ petition in August 2014. MCWRA argued that the petition was procedurally barred 

and should be dismissed because Monterey Coastkeeper had failed to show that writ 

relief was available on the grounds that either MCWRA had a mandatory duty under the 

Porter-Cologne Act or Monterey Coastkeeper’s administrative remedies under the PorterCologne Act were inadequate. MCWRA also argued that the petition lacked substantive 

merit because a private cause of action is not authorized by the Porter-Cologne Act; 

MCWRA was not a waste discharger within the meaning of the Porter-Cologne Act; and 

MCWRA did not have any duties under the public trust doctrine.

B. Court Trial and Order Certifying Questions to the Regional Board

A court trial on Monterey Coastkeeper’s writ petition was set on November 14, 

2014. At the time of the hearing, the trial court determined (as stated in its subsequent 

intended statement of decision) that “due to the uncertain state of the record, the highly 

specialized and technical nature of the issues raised, and the parties’ opposing positions 
6

as to whether or not the [Regional Board] had determined [MCWRA] to be a waste 

discharger, the court desired that the Regional Board clarify its position as to whether 

[MCWRA] was a waste discharger and hence required to file a report of waste discharge 

under . . . sections 13260 and 13264.”

The trial court found that uncertainty in the record existed because the Regional 

Board had begun an investigation of MCWRA’s activities in 2012 but had taken no 

action on the investigation by the time of trial in 2014. The trial court therefore 

determined that the record should be clarified by ordering nonparty Regional Board to 

answer three questions, as stated in the court’s December 8, 2014 order: “In order to 

assist its resolution of this matter, the Court certifies the following questions to the 

[Regional Board]: [¶] (a) Has the Board completed its investigation of whether 

[MCWRA] activities in and around the Reclamation Ditch and Blanco Drain watersheds 

render MCWRA a waste discharger which must file a report of waste discharge pursuant 

to . . . sections 13260 or 13264? [¶] (b) If so, what is the Board’s determination? [¶] 

(c) If not, when does the Board anticipate making such a determination?”

In a January 7, 2015 letter addressed to the trial court, the Regional Board’s 

executive director responded that the Regional Board’s “staff has determined that 

MCWRA is a waste discharger and must file a report of waste discharge pursuant to . . . 

sections 13260 or 13264 for its activities in and around the Reclamation Ditch and 

Blanco Drain watersheds. We will provide additional information directly to MCWRA 

regarding timing and content of a report of waste discharge.”

The January 7, 2015 letter was followed by a January 22, 2015 email to the 

parties’ attorneys from an attorney in the State Water Board’s office of chief counsel. 

The email stated, among other things, that the Regional Board’s executive director “does 

not construe the [January 7, 2015] letter to the court as a request for MCWRA to file [a 

report of waste discharge]. The letter is not a board order, and the Executive Officer did 
7

not intend it to be a request for a [report of waste discharge] under section 13261, 

subdivision (a).”

C. Further Court Trial and Intended Decision

The court trial resumed on March 19, 2015. After hearing the parties’ arguments, 

the trial court entered an intended statement of decision on April 24, 2015. As discussed 

in the intended statement of decision, the trial court determined for several reasons that a 

writ of mandate should issue as requested by Monterey Coastkeeper.

First, the trial court rejected MCWRA’s contention that a writ of mandate should 

not issue because Monterey Coastkeeper had failed to exhaust its administrative remedies 

under the Porter-Cologne Act. The court ruled that the administrative remedy provided 

by the Porter-Cologne Act was inapplicable under the circumstances of this case, 

because, according to the court, only the inactivity of the Regional Board is subject to 

administrative review, not the inactivity of MCWRA in failing to file a waste discharge 

report. The court also ruled that Monterey Coastkeeper had exhausted its administrative 

remedies because the Regional Board had responded to the questions that the court 

“certified” to the Regional Board regarding its investigation of MCWRA’s activities with 

respect to the Reclamation Ditch and the Blanco Drain.

Second, the trial court found that Monterey Coastkeeper had a beneficial interest 

in the outcome of the case because it concerned an issue of public right, which was water 

quality. The court rejected MCWRA’s contentions that a writ could not issue to enforce 

a law of general applicability or, alternatively, that a private right of action does not exist 

under the Porter-Cologne Act.

Third, the trial court found that MCWRA’s operation of the Reclamation Ditch 

and the Blanco Drain caused a discharge of waste within the meaning of the PorterCologne Act, and therefore MCWRA was required to file a waste discharge report with 

the Regional Board pursuant to section 13260, subdivision (a).
8

However, the trial court found no merit in Monterey Coastkeeper’s contention 

that MCWRA had violated the public trust doctrine. The court determined that the 

appropriate representative of the state as the trustee of the public trust was the Regional 

Board, not MCWRA.

Based on these rulings, the trial court granted Monterey Coastkeeper’s petition for 

writ of mandate as to the first cause of action (violation of section 13260 of the PorterCologne Act—failure to file a report of waste discharge) and denied as to the fourth 

cause of action (breach of duty under the public trust doctrine). The court noted that 

Monterey Coastkeeper had abandoned all three remaining causes of action.

A peremptory writ of mandate pursuant to Code of Civil Procedure section 1085 

was entered on June 4, 2015. The writ states in part that MCWRA is commanded “to 

prepare and file a report of waste discharge under . . . section 13260 of the PorterCologne Act with the Central Coast Regional Water Quality Control Board for its 

activities in and around the Reclamation Ditch and Blanco Drain watersheds within 

30 days of the entry of the Judgment.”

IV. MCWRA’S APPEAL

On appeal,4 MCWRA contends that the trial court erred in issuing a peremptory 

writ of mandate commanding MCWRA to prepare and file a report of waste discharge 

because Monterey Coastkeeper failed to exhaust administrative remedies. Alternatively, 

MCWRA argues that mandamus is not available to enforce a law of general applicability, 

and, in any event, MCWRA does not discharge waste into the waters of the state.

As we will explain, we determine that the issue of failure to exhaust administrative 

remedies is dispositive. We will therefore begin our evaluation of MCWRA’s 

contentions with an overview of the doctrine of exhaustion of administrative remedies.

 

4

The peremptory writ of mandate entered on June 4, 2015, is appealable because 

the trial court disposed of all issues in the action between Monterey Coastkeeper and 

MCWRA. (See Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 699.)
9

A. Exhaustion of Administrative Remedies

Under the doctrine of exhaustion of administrative remedies, “the rule is that 

where an administrative remedy is provided by statute, relief must be sought from the 

administrative body and this remedy exhausted before the courts will act.” (Abelleira v. 

District Court of Appeal (1941) 17 Cal.2d 280, 292 (Abelleira).) The doctrine “is not a 

matter of judicial discretion, but is a fundamental rule of procedure . . . binding upon all 

courts.” (Id. at p. 293.)

This court has explained that “ ‘[t]he exhaustion doctrine is principally grounded 

on concerns favoring administrative autonomy (i.e., courts should not interfere with an 

agency determination until the agency has reached a final decision) and judicial 

efficiency (i.e., overworked courts should decline to intervene in an administrative 

dispute unless absolutely necessary).’ [Citation.] ‘ “Even where the administrative 

remedy may not resolve all issues or provide the precise relief requested by a plaintiff, 

the exhaustion doctrine is still viewed with favor ‘because it facilitates the development 

of a complete record that draws on administrative expertise and promotes judicial 

efficiency.’ ” ’ [Citation.]” (McAllister v. County of Monterey (2007) 147 Cal.App.4th 

253, 275 (McAllister).) Therefore, “[u]ntil an available ‘administrative procedure has 

been invoked and completed, there is nothing that the . . . court may review; it cannot 

interfere in the intermediate stages of the proceeding.’ [Citation.]” (Ibid.)

“The exhaustion doctrine has certain exceptions. [Citation.] The doctrine does 

not apply when the administrative remedy is inadequate. [Citation.] For example, it does 

not apply when the administrative procedure is too slow to be effective [citation], or 

when irreparable harm would result by requiring exhaustion of administrative remedies 

before seeking judicial relief [citations], or when it is clear that seeking administrative 

remedies would be futile [citation].” (City of San Jose v. Operating Engineers Local 

Union No. 3 (2010) 49 Cal.4th 597, 609.)
10

“We apply a de novo standard of review to the legal question of whether the 

doctrine of exhaustion of administrative remedies applies in a given case. [Citations.]” 

(Citizens for Open Government v. City of Lodi (2006) 144 Cal.App.4th 865, 873.) 

Accordingly, we will independently determine whether Monterey Coastkeeper has an 

administrative remedy under the Porter-Cologne Act and, if so, whether that remedy has 

been exhausted.

B. Administrative Remedy Under the Porter-Cologne Act

The Porter-Cologne Act provides that any person aggrieved by a regional water 

board’s action or failure to act is entitled to administrative review. (§ 13320, subd. (a).)

Section 13320, subdivision (a) provides: “Within 30 days of any action or failure to act 

by a regional board under subdivision (c) of Section 13225, Article 4 (commencing with 

Section 13260 [requirements for waste discharge reports]) . . . , an aggrieved person may 

petition the state board to review that action or failure to act. In case of a failure to act, 

the 30-day period shall commence upon the refusal of the regional board to act, or 

60 days after request has been made to the regional board to act. The state board may, 

on its own motion, at any time, review the regional board’s action or failure to act.” 

(Italics added.)

The procedures for the State Water Board’s administrative review of a regional 

board’s action or failure to act are set forth in title 23 of the California Code of 

Regulations, sections 2050-2068. These procedures include the requirements for the 

aggrieved person’s petition to the State Water Board (id., § 2050), the State Water 

Board’s process for reviewing the petition (id., § 2050.5), the introduction of 

supplemental evidence (id., § 2050.6), the notice to be provided for a defective petition

and the filing of an amended petition (id., § 2051), the actions the State Water Board may 
11

take on a petition (id., § 2052),5the prerequisites for a stay order (id., § 2053), the notice 

to be provided for review on the State Water Board’s own motion (id., § 2055), the 

contents of the record before the State Water Board (id., § 2064), the informal disposition

of petitions (id., § 2065), the formal disposition of petitions (id., § 2067), and the 

requirement that each regional board inform persons attending a regional board’s 

business meetings of the right to petition the State Water Board to review an action or 

inaction of the regional board (id., § 2068).

A person aggrieved by the State Water Board’s decision or order may obtain 

judicial review by filing a petition for writ of mandate with the superior court, with one 

exception not applicable here. (§ 13330, subd. (a).) Where the State Water Board denies 

review of a regional board’s final decision or order, a person aggrieved by the regional 

board’s decision or order may obtain judicial review by filing a petition for writ of 

mandate with the superior court. (§ 13330, subd. (b).) Code of Civil Procedure 

section 1094.5 governs the proceedings for writ petitions filed pursuant to section 13330. 

(§ 13330, subd. (e).)

Thus, “ ‘[d]ecisions and orders of the [Regional Board], . . . are reviewable by 

administrative appeal to the State Water Board, and then by petition for administrative 

mandamus in the superior court. ([Code Civ. Proc., ]§ 1094.5; Wat. Code, §§ 13320, 

13330.)’ ” (Surfrider Foundation v. California Regional Water Quality Control Bd.

(2012) 211 Cal.App.4th 557, 568-569 (Surfrider Foundation).)

 

5 California Code of Regulations, title 23, section 2052, subdivision (a) provides: 

“The state board may: [¶] (1) At any time, refuse to review the action or failure to act of 

the regional board if the petition fails to raise substantial issues that are appropriate for 

review, or [¶] (2) After review of all or part of the regional board’s records pertaining to 

the matter, including the transcript of any hearing held by the regional board: [¶] (A) 

Deny the petition upon a finding that the action or failure to act of the regional board was

appropriate and proper or that the petition fails to raise substantial issues that are 

appropriate for review; or [¶] (B) Set aside or modify the regional board order; or [¶] 

(C) Direct the regional board to take appropriate action.”
12

C. Analysis

MCWRA and amicus curiae (the Association of California Water Agencies, the 

League of California Cities, and the California State Association of Counties)6argue that 

the Porter-Cologne Act provides an adequate and mandatory administrative remedy for 

Monterey Coastkeeper’s complaint that MCWRA has failed to file waste discharge 

reports, and therefore the petition for writ of mandate should have been denied due to 

Monterey Coastkeeper’s failure to exhaust administrative remedies.

Monterey Coastkeeper responds that it does not have an administrative remedy, 

and therefore it is not required to exhaust administrative remedies, because MCWRA 

“does not have a defined procedure through which [Monterey] Coastkeeper could 

administratively pursue its grievances that [MCWRA] unlawfully has failed to file a 

report of waste discharge.” Additionally, Monterey Coastkeeper contends that the 

Regional Board “has no mandatory duty to act on a request by [Monterey] Coastkeeper” 

and, in any event, the State Water Board’s review of the Regional Board’s failure to 

“take enforcement action” against MCWRA is not subject to judicial review. For these 

reasons, Monterey Coastkeeper contends there is no adequate administrative remedy and 

it properly filed a petition for writ of mandate requiring MCWRA to file a report of waste 

discharge.

Having reviewed the administrative remedy provided by the Porter-Cologne Act, 

we agree with MCWRA and amicus curiae. Under the Porter-Cologne Act, an adequate 

administrative remedy exists with regard to Monterey Coastkeeper’s claims that 

MCWRA has violated its obligation under section 13260, subdivision (a)(1) to report 

waste discharges from the Reclamation Ditch and the Blanco Drain to the Regional 

Board and should be compelled to file such reports.

 

6

This court granted the application of the Association of California Water 

Agencies, the League of California Cities, and the California State Association of 

Counties to file an amicus curiae brief in support of MCWRA.
13

The Porter-Cologne Act provides that a regional board has the authority to require 

a report of waste discharge (§§ 13260,713261,813262,913264,10 1326711) and to hold a 

discharger civilly liable for failure to file a waste discharge report. (§§ 13261, 13265.) 

The Porter-Cologne Act also provides that a regional board may be requested to act. 

(§ 13320, subd. (a).) Therefore, under section 13320, subdivision (a), Monterey 

Coastkeeper could have requested the Regional Board to act by requiring MCWRA to 

file waste discharge reports in compliance with section 13260, subdivision (a)(1).

If Monterey Coastkeeper was aggrieved by the Regional Board’s failure to act, 

such as a failure to require MCWRA to file waste discharge reports pertaining to the 

Reclamation Ditch and the Blanco Drain, Monterey Coastkeeper was entitled to file a 

petition for review of the Regional Board’s failure to act with the State Water Board. 

 

7

Section 13260, subdivision (a)(1) provides: “Each of the following persons shall 

file with the appropriate regional board a report of the discharge, containing the 

information that may be required by the regional board: [¶] (1) A person discharging 

waste, or proposing to discharge waste, within any region that could affect the quality of 

the waters of the state, other than into a community sewer system.”

8

Section 13261, subdivision (a) provides: “A person who fails to furnish a report 

or pay a fee under Section 13260 when so requested by a regional board is guilty of a 

misdemeanor and may be liable civilly in accordance with subdivision (b).”

9

Section 13262 provides: “The Attorney General, at the request of the regional 

board or the state board, shall petition the superior court for the issuance of a temporary 

restraining order, temporary injunction, or permanent injunction, or combination thereof, 

as may be appropriate, requiring any person not complying with Section 13260 to comply 

therewith.”

10 Section 13264, subdivision (a) provides in part: “No person shall initiate any 

new discharge of waste or make any material changes in any discharge, or initiate a 

discharge to, make any material changes in a discharge to, or construct, an injection well, 

prior to the filing of the report required by Section 13260 . . . .”

11 Section 13267, subdivision (b)(1) provides in part: “[T]he regional board may 

require that any person who has discharged, discharges, or is suspected of having 

discharged or discharging, or who proposes to discharge waste within its region, . . . that 

could affect the quality of waters within its region shall furnish, under penalty of perjury, 

technical or monitoring program reports which the regional board requires.”
14

The Porter-Cologne Act expressly provides that where a regional board has failed to act, 

an aggrieved person “may petition the [State Water Board] to review that action or failure 

to act . . . .” (§ 13320, subd. (a).) Then, if Monterey Coastkeeper was aggrieved by the 

State Water Board’s decision or order, it could obtain judicial review by filing a petition 

for a writ of administrative mandamus in the superior court. (§ 13330, subds. (a), (b), & 

(e); Code Civ. Proc., § 1094.5; see Surfrider Foundation, supra, 211 Cal.App.4th at 

pp. 568-569.) We therefore determine that Monterey Coastkeeper had an administrative 

remedy under the provisions of the Porter-Cologne Act for its claim that MCWRA should 

be compelled to file waste discharge reports with respect to the Reclamation Ditch and 

the Blanco Drain.

We are not convinced by Monterey Coastkeeper’s argument that the 

administrative remedy provided by the Porter-Cologne Act is inapplicable, and therefore 

it can proceed directly against MCWRA in the superior court by filing a petition for a 

writ of mandate compelling MCWRA to file a waste discharge report with the Regional 

Board. As we have noted, the Porter-Cologne Act provides that the State Water Board 

and the nine regional boards have primary responsibility for water quality, and the 

regional boards have responsibility for issuing waste discharge permits. (§ 13001; 

Dept. of Finance, supra, 1 Cal.5th at pp. 755-756.) Moreover, the provisions of the 

Porter-Cologne Act establish the regional boards as the authority for determining whether 

a waste discharge report must be filed by a suspected discharger. (§§ 13260, subd.(a)(1), 

13261, 13262, 13264, 13265, 13267, subd. (b)(1).) The regional boards are also 

authorized to prescribe “requirements as to the nature” of the discharge, including the 

implementation of applicable water quality control plans. (§ 13263, subd. (a).) Monterey 

Coastkeeper has provided no authority for the proposition that the superior court may 

decide in the first instance on a petition by a third party that a suspected discharger is 

required to file a waste discharge report, in contravention of the Porter-Cologne Act’s 

express statutory scheme for the regulation of waste discharges by the regional boards 
15

and the Porter-Cologne Act’s administrative remedies. (See § 13262 [regional board, 

through the Attorney General, may petition the superior court for injunctive relief 

requiring a person to comply with § 13260].)

We are also not convinced by Monterey Coastkeeper’s argument that the PorterCologne Act’s administrative remedy is inadequate because it does not provide for 

judicial review. We reiterate that the Porter-Cologne Act expressly provides for judicial 

review, as follows. A person aggrieved by the State Water Board’s decision or order may 

obtain judicial review by filing a petition for writ of mandate with the superior court, with 

one exception not applicable here. (§ 13330, subd. (a).) Where the State Water Board 

denies review of a regional board’s final decision or order, an aggrieved person may 

obtain judicial review of the regional board’s decision or order by filing a petition for 

writ of mandate with the superior court. (§ 13330, subd. (b), (e); see Surfrider 

Foundation, supra, 211 Cal.App.4th at pp. 568-569.)

The decision in Johnson v. State Water Resources Control Bd. (2004) 123 

Cal.App.4th 1107 (Johnson), on which Monterey Coastkeeper relies, does not support its 

argument that the Porter-Cologne Act’s administrative remedy is inadequate because it 

does not provide for judicial review. In Johnson, the regional board imposed a fine on 

the appellants for their failure to file a notice of intent prior to grading their property and 

failure to respond to the regional board’s request for information. (Johnson, supra, at 

p. 1111.) The appellants sought review by the State Water Board, “but the board 

dismissed their petition based on its informal rule that it will not review administrative 

civil penalties imposed by regional boards.” (Ibid.) The Johnson court concluded that 

“a discretionary decision by the State Board as to whether to review a regional board’s 

decision imposing administrative penalties is not subject to judicial review.” (Id. at 

p. 1114.) However, the Johnson court emphasized that the appellants were not prevented 

from obtaining judicial review of the regional board’s order imposing a fine, since the 

Porter-Cologne Act’s statutory scheme “provides for direct judicial review of a regional 
16

board decision where the State Board declines review.” (Johnson, supra, at p. 1114; 

§ 13330, subd. (b).)

Monterey Coastkeeper also relies on People ex rel. Cal. Regional Wat. Quality 

Control Bd. v. Barry (1987) 194 Cal.App.3d 158 (Barry) for the proposition that “the 

Regional Board’s failure to take enforcement action in response to [Monterey] 

Coastkeeper’s request remains judicially unreviewable as an exercise of enforcement 

discretion . . . .” In Barry, the appellate court noted that “[s]ection 13330 was enacted 

virtually as proposed. [Citation.] It is noteworthy because it does not expressly provide 

for superior court review of regional board actions where the state board chooses to deny 

a petition for review.” (Id. at p. 175.)

However, Monterey Coastkeeper’s reliance on the 1987 decision in Barry is 

misplaced because section 13330 was amended in 1996 to provide that “[a]ny party 

aggrieved by a final decision or order of a regional board for which the state board denies 

review 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 not later than 30 days from the 

date on which the state board denies review.” (Stats. 1996, ch. 659, § 24.)12

Therefore, as stated in Machado v. State Water Resources Control Bd. (2001) 90 

Cal.App.4th 720, 726: “Under section 13320, subdivision (a), a party aggrieved by an 

order of a regional water quality control board may petition the State Board for review. 

[Appellant] complains that the protections afforded by this review are somewhat illusory 

because review is discretionary. However, if the State [Water] Board denies review, the 

 

12 Section 13330, subdivision (b) currently provides: “A party aggrieved by a final 

decision or order of a regional board subject to review under Section 13320 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 not later than 30 days from the date on which the state 

board denies review.”
17

issued order is deemed final and the party may challenge the order through a petition for 

mandate in the trial court. ([Citation]; see § 13330, subd. (b).)”

Having determined that an adequate administrative remedy exists under the PorterCologne Act with regard to Monterey Coastkeeper’s claims that MCWRA has violated its 

obligation under section 13260, subdivision (a)(1) to report waste discharges from the 

Reclamation Ditch and the Blanco Drain to the Regional Board and should be compelled 

to file such reports, we further determine that Monterey Coastkeeper has failed to exhaust 

its administrative remedy. The record reflects that Monterey Coastkeeper has not 

requested under section 13320, subdivision (a) that the Regional Board act by requiring 

MCWRA to file a waste discharge report in compliance with section 13260, 

subdivision (a)(1). Although Monterey Coastkeeper complained in the trial court that 

“[t]he Regional Board has never completed its outstanding factual investigation because 

[MCWRA] has failed to fully respond to repeated inquiries,” the record also reflects that 

Monterey Coastkeeper has not filed a petition for review of the Regional Board’s failure 

to act with the State Water Board under section 13320, subdivision (a). Had Monterey 

Coastkeeper done so, the administrative review procedure would have facilitated the 

development of a complete record that drew on the State Water Board’s expertise. (See 

McAllister, supra, 147 Cal.App.4th at p. 275.)

Since Monterey Coastkeeper failed to initiate the administrative review process by 

filing a petition for review with the State Water Board of the Regional Board’s action or 

failure to act (§ 13320, subd. (a)) with regard to MCWRA’s alleged waste discharges 

from the Reclamation Ditch and Blanco Drain, we determine that Monterey Coastkeeper 

has failed to exhaust its administrative remedy under the Porter-Cologne Act. (See 

Abelleira, supra, 17 Cal.2d at p. 292.) Where, as here, the plaintiff seeks a writ of 

mandate under Code of Civil Procedure section 1085, “ ‘ “[i]f an administrative remedy 

is available and has not yet been exhausted, an adequate remedy exists and the petitioner 

is not entitled to extraordinary relief.” [Citation.]’ [Citations.]” (Pich v. Lightbourne
18

(2013) 221 Cal.App.4th 480, 491.) Since Monterey Coastkeeper is not entitled to 

extraordinary relief due to its failure to exhaust its administrative remedy under the 

Porter-Cologne Act, we conclude that its petition for writ of mandate should have been 

denied by the trial court. Having reached this conclusion, we need not address the other 

issues raised by MCWRA in its appeal.

We will therefore reverse the judgment granting Monterey Coastkeeper’s petition 

for writ of mandate and direct the trial court to enter a judgment denying the petition.

V. MONEREY COASTKEEPER’S CROSS-APPEAL

In its cross-appeal, Monterey Coastkeeper contends that the trial court erred in 

denying its petition for writ of mandate as to its fourth cause of action for breach of 

fiduciary duty under the public trust doctrine, in which Monterey Coastkeeper alleged 

that MCWRA’s discharge of agricultural pollutants into the Reclamation Ditch and the 

Blanco Drain constituted a breach of its duty under the public trust doctrine.

The public trust doctrine provides that certain natural resources, including water 

resources, are held by the state “ ‘ “as trustee of a public trust for the benefit of the 

people.” ’ [Citation.]” (National Audubon Society v. Superior Court (1983) 33 Cal.3d 

419, 434, fn. omitted (National Audubon Society).) However, “the public trust is more 

than an affirmation of state power to use public property for public purposes. It is an 

affirmation of the duty of the state to protect the people’s common heritage of streams, 

lakes, marshlands and tidelands, surrendering that right of protection only in rare cases 

when the abandonment of that right is consistent with the purposes of the trust.” (Id. at 

p. 441.)

Accordingly, “[t]he state has an affirmative duty to take the public trust into 

account in the planning and allocation of water resources, and to protect public trust uses

whenever feasible.” (National Audubon Society, supra, 33 Cal.3d at p. 446, fn. omitted.) 

The State Water Board, “in undertaking planning and allocation of water resources, is 
19

required by statute to take those interests [protected by the public trust] into account.” 

(Id. at p. 444; see § 1243.5.13)

Monterey Coastkeeper contends that MCWRA is a public trustee with a public 

trust duty, which MCWRA breached “in managing the Reclamation Ditch and Blanco 

Drain systems.” MCWRA disagrees, arguing that the trial court properly determined that 

MCWRA is not a trustee subject to a private right action for violation of the public trust, 

since there is no statutory authority providing that MCWRA is a trustee under the public 

trust doctrine. MCWRA maintains that as an entity regulated under the Porter-Cologne 

Act, its “public trust responsibilities in the water quality context are . . . coextensive with 

Porter-Cologne requirements, and defined according to the regulatory discretion of the 

state and regional boards . . . where authority over public trust uses actually resides.”

We determine that the issue of whether MCWRA has violated a public trust duty 

by discharging agricultural pollutants into the Reclamation Ditch and the Blanco Drain is 

not ripe for adjudication. “ ‘A controversy is “ripe” when it has reached, but has not 

passed, the point that the facts have sufficiently congealed to permit an intelligent and 

useful decision to be made.’ [Citation].” (Pacific Legal Foundation v. California 

Coastal Com. (1982) 33 Cal.3d 158, 171 (Pacific Legal Foundation).) “[T]he ripeness 

doctrine is primarily bottomed on the recognition that judicial decisionmaking is best 

conducted in the context of an actual set of facts so that the issues will be framed with 

sufficient definiteness to enable the court to make a decree finally disposing of the 

controversy.” (Id. at p. 170; see also Association of Irritated Residents v. Department of 

Conservation (2017) 11 Cal.App.5th 1202, 1221.) Thus, “[t]he ripeness requirement . . . 

 

13 Section 1243.5 provides in part: “In determining the amount of water available 

for appropriation, the board shall take into account, whenever it is in the public interest, 

the amounts of water needed to remain in the source for protection of beneficial uses, 

including any uses specified to be protected in any relevant water quality control plan 

established pursuant to Division 7 (commencing with Section 13000) of this code.”
20

prevents courts from issuing purely advisory [or hypothetical] opinions.” (Pacific Legal 

Foundation, supra, at p. 170.)

As we have noted, “[t]he Porter-Cologne Act requires any person discharging, or 

proposing to discharge, waste that could affect the quality of state waters to file a report 

with the appropriate regional board. (. . . § 13260, subd. (a)(1).) The regional board then 

‘shall prescribe requirements as to the nature’ of the discharge, implementing any 

applicable water quality control plans. (. . . § 13263, subd. (a).) The Operators must 

follow all requirements set by the Regional Board. (. . . §§ 13264, 13265.)” (Dept. of 

Finance, supra, 1 Cal.5th at p. 756.) In the present case, since Monterey Coastkeeper 

did not initiate the administrative review process under the Porter-Cologne Act, no 

administrative record exists regarding the nature of any waste discharge by MCWRA 

into the Reclamation Ditch and the Blanco Drain, and the Regional Board did not have 

the opportunity to prescribe requirements as to the nature of the discharge and to 

implement applicable water quality control plans. Absent an administrative record that 

would provide an “actual set of facts” on which a decision could be based as to whether 

the public trust doctrine has been violated by a discharge of agricultural pollutants into 

the Reclamation Ditch and the Blanco Drain by MCWRA, we decline to issue an 

advisory opinion. (Pacific Legal Foundation, supra, 33 Cal.3d at p. 170.)

To the extent Monterey Coastkeeper relies on the decision in National Audubon 

Society for the proposition that it is not required to exhaust an administrative remedy 

where a breach of duty under the public trust doctrine is alleged, we are not persuaded 

because National Audubon Society is distinguishable. In National Audubon Society, the 

California Supreme Court addressed an issue of water rights: Whether the plaintiffs’ 

action in superior court to enjoin the City of Los Angeles’s Department of Water and 

Power from diverting water from Mono Lake was barred due the plaintiff’s failure to 

exhaust administrative remedies before the State Water Board. (National Audubon 

Society, supra, 33 Cal.3d at pp. 424-425.) The court concluded that the superior court 
21

has concurrent jurisdiction with the State Water Board to determine controversies under 

the state’s appropriative water rights system, and therefore the plaintiffs were not 

required to exhaust an administrative remedy before filing suit. (Id. at pp. 426, 451-452.) 

The court also concluded that “plaintiffs can rely on the public trust doctrine in seeking 

reconsideration of the allocation of the waters of the Mono Basin.” (Id. at p. 452.) No 

issue was raised in National Audubon Society as to the Porter-Cologne Act’s express 

statutory scheme for the regional boards’ regulation of waste discharges and the PorterCologne Act’s corresponding administrative remedies. “It is well established, of course, 

that ‘ “cases are not authority for propositions not considered.” ’ [Citation.]” (Loeffler v. 

Target Corp. (2014) 58 Cal.4th 1081, 1134.)

Accordingly, we conclude that the trial court did not err in denying Monterey 

Coastkeeper’s petition for writ of mandate as to the fourth cause of action for breach of 

duty under the public trust doctrine.

VI. DISPOSITION

The judgment granting the petition for writ of mandate is reversed, and the court 

is directed to enter a judgment denying the petition. Costs on appeal are awarded to 

appellant Monterey County Water Resources Agency.
___________________________________________

BAMATTRE-MANOUKIAN, J.

WE CONCUR:

__________________________

ELIA, ACTING P.J.

__________________________

MIHARA, J.

Monterey Coastkeeper v. Monterey County Water Resources Agency

H042623
Trial Court: Monterey County Superior Court

Superior Court No.: M108858

Trial Judge: Hon. Thomas W. Wills

Attorneys for Plaintiff and Appellant:

Monterey CoastKeeper

Environmental Law Clinic

Mills Legal Clinic at Stanford Law School 

Deborah A. Sivas

Alicia E. Thesing

Attorneys for Defendant and 

Appellant:

Monterey County Water Resources 

Agency

Downey Brand

Steven P. Saxton

Nicole E. Granquist

Elizabeth B. Stallard

County of Monterey

Charles McKee

Leslie J. Girard

Irven L. Grant

Attorneys for Amicus Curiae in 

support of Monterey County Water 

Resources Agency:

Association of California Water 

Agencies, League of California Cities, 

and California State Association of 

Counties

Somach Simmons & Dunn

Theresa A. Dunham

Theresa C. Barfield

Brenda C. Bass

Monterey Coastkeeper v. Monterey County Water Resources Agency

H042623