A California superior court has ordered the State Water Resources Control Board and the Los Angeles Regional Water Quality Control Board to review and revise their water quality standards governing storm water and urban runoff to reflect what can “reasonably be achieved” taking into account economic considerations, housing needs, and other factors. Because the State Board and the nine Regional Boards have for decades largely disregarded calls to balance such factors when developing water quality standards for storm water and urban runoff—as well as for many other types of pollutants—the court’s order may ultimately lead the State and Regional Boards to substantially revise water quality standards throughout the state.

In California, the State and Regional Boards administer those parts of the federal Clean Water Act pertaining to the National Pollutant Discharge Elimination System (“NPDES”), which governs discharges of certain types of pollutants, including discharges of storm water from construction and industrial sites. Toward this end, the State and Regional Boards have developed Basin Plans for the several regions of the state, which designate the “beneficial uses” of the various waters in each region and establish “water quality standards” designed to maintain those beneficial uses. The Boards may authorize certain discharges of pollutants into waters of the state by issuing NPDES permits. In order to obviate the need to issue individual NPDES permits for every construction and industrial site, the State Board issued two “general permits”—one for construction and one for industrial activities—that enable those with projects and facilities meeting certain requirements to enroll for authorization under the general permits by submitting short notices of intent to comply with the permit terms. The general permits require compliance with applicable water quality standards and, in certain circumstances, implementation of a site-specific storm water pollution prevention plan.

A coalition of cities and builder organizations sued the State and Los Angeles Regional Board alleging that they had implemented storm water quality standards without complying with sections of the California Water Code requiring the Boards to balance various factors, including “[w]ater quality conditions that [can] reasonably be achieved [and e]conomic considerations [and t]he need for developing housing in the region,” in order to “attain the highest water quality which is reasonable, considering all demands being made and to be made on those waters and the total values involved, beneficial and detrimental, economic and social, tangible and intangible.” The coalition argued that the Boards failed to balance these factors to assess the reasonableness of the standards when they first included them in the Los Angeles Basin Plan in the 1970s and repeated this failure in succeeding years during their statutorily required “triennial reviews” of the Basin Plan. Of particular concern to the coalition was the Boards’ recent addition of “numeric” storm water quality standards to supplement the conventional narrative standards. The Boards countered that their triennial review is not the time or place to evaluate the reasonableness of the standards.

The court agreed with the coalition. Setting aside the Regional Board’s resolution concluding the most recent triennial review of the Basin Plan, the court ordered the Boards to review and revise their storm water standards “in light of the factors and requirements” prescribed in the Water Code and to cease and desist all activities relating to implementation and enforcement of the standards until the review and revision is complete. The court also invalidated the Regional Board’s practice of basing storm water standards on “potential” beneficial uses of the rivers, lakes, and other waters into which the storm water flows. Finding this practice contrary to the Water Code’s requirements that standards be based on consideration of “probable future beneficial uses” and “all demands being made and to be made” on state waters, the court directed the Regional Board to remove “potential” beneficial use designations from the Basin Plan.

In response to the court’s July 2 order, the State Board announced on July 16 that it would no longer authorize storm water discharges under its general permits for construction and industrial activities in the Los Angeles region until it has completed the review process—effectively imposing a moratorium on new construction there. On August 1, the court issued a second order informing the Boards that its earlier order plainly enables them to continue to enforce NPDES storm water permits except to the extent that such permits would implement a TMDL (“total maximum daily load”) or a “numeric” limit. The State Board has announced that it will resume processing authorizations of storm water discharges under the general permits.
If the superior court’s decision is followed (the Boards have yet to announce whether they will appeal), it could lead the State Board and the nine Regional Boards to profoundly reshape the state’s water quality standards throughout the state —not only for storm water and urban runoff, but also for discharges of all types of pollutants (termed “waste” in the Water Code). The San Francisco Regional Board soon begins the triennial review of its Basin Plan, so it will be among the first to face how to address the issues raised by the court’s decision.

 
David Ivester
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630

Disclaimer: In our Newsletters and Bulletins, Briscoe Ivester & Bazel LLP intends to present general information to the public and does not intend to provide legal advice pertaining to a particular situation.

 

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