A state appeals court has provided water quality regulators with two significant victories, at least one of which could affect land use and development.
The Fourth District Court of Appeal upheld the Santa Ana Regional Water Quality Control Board’s stormwater regulation for 18 local governments in San Bernardino County. A different panel of the same court upheld nearly all of a much-discussed “trash TMDL” that charges local governments with keeping all trash out of the Los Angeles River.
Cities have fought the regulations since they were initially proposed, arguing that compliance would be overly expensive. The cities have asked the state Supreme Court to review the decision on the Los Angeles River regulation.
The San Bernardino County stormwater ruling could have the largest impact for those in the land use planning and development fields. Regional water boards in most of the state’s urban areas have cracked down on storm drain discharges during recent years (see CP&DR Environment Watch, October 2002, August 2001, March 2000, February 1998). The increased regulation intends to slow and filter runoff, which has forced a change in some planning and development practices. Some cities and counties — especially those located upstream — and development interests have fought the rules.
The case at hand concerned a 2002 municipal stormwater permit that the Santa Ana regional board issued for 18 local government entities in San Bernardino County. Several of those entities appealed the permit’s conditions to the State Water Resources Control Board, which summarily dismissed the appeal. The cities of Rancho Cucamonga and Upland then sued the state and regional boards on procedural and substantive grounds. San Bernardino County Superior Court Judge Shahla Sabet ruled against the cities. Rancho Cucamonga alone appealed, and the Fourth District, Division Two, upheld the lower court.
The Fourth District had little patience with Rancho Cucamonga’s arguments. First, the court ruled that Judge Sabet correctly dismissed the state board from the case because the state board had declined to become involved in the permit. Then the court turned to the regional board’s actions.
The city raised what the court described as “an omnibus objection to the entire administrative record,” especially the inclusion of three studies regarding marine pollution and an economic study. The court ruled, though, that the city had waived its objection because it did not raise concerns about the record during the administrative process.
The court then considered five substantive complaints: that the regional board failed to consider the economic impact of the permit conditions; that there was not substantial evidence supporting the board’s decision; that the lack of a “safe harbor” provision in the permit violated the Clean Water Act; that the permit conditions exceeded the “maximum extent practicable” standard for controlling pollution; and that the permit was overly prescriptive. The court discussed each argument only briefly before rejecting each one.
The court determined the 2002 permit “was based on a fiscal analysis and a cost/benefit analysis.” As for the alleged lack of sufficient evidence, the court said it was unwilling “to review the many thousands of pages submitted on appeal.” Justice Barton Gaut wrote for the court: “Rancho Cucamonga had the burden of showing the board abused its discretion or its findings were not supported by the facts. To the extent it attempted to do so at the trial court level, it was not successful. … [W]e deem the trial court’s findings sufficient.”
The court called the safe harbor argument “much ado about nothing.” Under the safe harbor principle, an agency is considered in compliance with the Clean Water Act if the agency complies with its permit. The court said that the safe harbor protection exists in statute and does not need to be repeated in the permit.
Regarding the actual permit conditions, the court found them in compliance with the Clean Water Act and cited its ruling in Building Industry Assn. of San Diego County v. State Water Resources Control Board, (2004) 124 Cal.App.4th 866 (see CP&DR Legal Digest, January 2005). In that case the court ruled that the act allowed the San Diego regional board to adopt stormwater regulations that surpassed the “maximum extent practicable” standard.
“[L]ike the permit in Building Industry,” Gaut wrote, “the 2002 permit contemplates controlling discharge of pollutants to the maximum extent practicable through a ‘cooperative iterative process where the Regional Water Quality Control Board and municipality work together to identify violations of water quality standards.’ The 2002 permit does not exceed the maximum extent practicable standard.”
The court also rejected the argument the permit conditions were overly prescriptive. “The development and implementation of programs to control the discharge of pollutants is left largely to the permittees,” the court determined.
The Los Angeles River case concerned the infamous “trash TMDL.” Under the Clean Water Act, agencies are supposed to set total maximum daily loads (TMDLs) for impaired water bodies (known as the 303(d) list), such as the Los Angeles River. “‘A TMDL defines the specified amount of a pollutant which can be discharged or loaded into the waters at issue from all combined sources,’” the Fourth District explained, using a definition from Dioxin/Organochlorine Center v. Clarke, (9th Cir. 1995) 57 F.3d 1517, 1520. Once a TMDL is established, all National Pollution Discharge Elimination System (NPDES) permits must be consistent with the waste loading allowed by the TMDL.
In 2001, the Los Angeles Regional Water Quality Control Board established a TMDL for trash in the Los Angeles River. Trash is defined as waste that has not been properly discarded. The regional board set the trash TMDL at zero, to be phased in over 14 years. The NPDES permit regulating stormwater discharges from Los Angeles County and 84 other local entities would have to comply with the zero-trash mandate. The State Water Quality Control Board and Office of Administrative Law approved the trash TMDL in 2002, as did the federal Environmental Protection Agency.
A coalition of 22 cities sued the EPA in federal court, but lost a Ninth Circuit ruling last year in City of Arcadia v. EPA, 411 F3d 1103 (see CP&DR Legal Digest, August 2005). In state court, the cities sued the state and Los Angeles water boards. After the case was moved to San Diego County, the Superior Court found a number of problems with the TMDL and ordered the water boards not to implement it. Both sides appealed, and the Fourth District overturned portions of the Superior Court decision favoring the cities — but not the entire decision.
The Superior Court ruled that the TMDL was faulty because the water boards did not conduct an “assimilative capacity study,” did not consider economic factors, applied the TMDL to the Los Angeles Estuary even though it was not on the 303(d) list, and failed to prepare an environmental impact report or its functional equivalent. The Fourth District rejected the first three grounds for dismissing the TMDL but accepted the environmental review argument.
Under an assimilative capacity study, the water board could essentially decide that some amount of trash would not harm beneficial uses of the river. The water boards, though, had decided that because the river merely transports trash without diluting the pollutant, no level of trash was acceptable. The Fourth District found that federal law mandates no such study, and noted that the TMDL requires the regional water board to reconsider the target of zero after a 50% reduction has been achieved.
As for economic considerations, the court noted that the TMDL addressed the cost of several types of systems to capture and remove trash from storm drains, including a system that would cost $1.8 billion for installation and 10 years of operation and maintenance. That was good enough for the appellate panel.
Regarding the estuary, described as part of Queensway Bay in Long Beach, the court found the “TMDL’s identification of the estuary as impaired could have been clearer, but we conclude it was sufficient to put all affected parties on notice.”
The issue of environmental review is where the water boards stumbled. The environmental documentation consisted of a checklist that, according to the court, the regional board “obviously intended” to be the functional equivalent of a negative declaration under the California Environmental Quality Act. On appeal, the water boards argued that the checklist met the requirements of a first tier EIR. The court did not buy it.
“[W]e conclude the check list and trash TMDL are insufficient as either the functional equivalent of a negative declaration or a tiered EIR. Moreover, an EIR is required since the trash TMDL itself presents substantial evidence of a fair argument that significant environmental impacts may occur,” Presiding Justice Judith McConnell wrote for the court. “Neither the checklist nor the trash TMDL includes an analysis of the reasonably foreseeable impacts of construction and maintenance of pollution control devices or mitigation measures.”
The cities appealed portions of the Superior Court ruling in favor of the water boards, but the Fourth District upheld the lower court. The Fourth District decision appears to let the TMDL take effect once the water boards perform an adequate environmental review. In March, the cities asked the state Supreme Court to review the case.
First Case:
City of Rancho Cucamonga v. Regional Water Quality Control Board – Santa Ana Region, No. E037079, 06 C.D.O.S. 845, 2006 DJDAR 1126. Filed January 26, 2006. Modified February 27, 2006, at 2006 DJDAR 2300.
The Lawyers:
For the city: James Markman, Richards, Watson & Gershon, (714) 990-0901.
For the water board: Jennifer Novak, attorney general’s office, (213) 897-4953.
Second Case:
City of Arcadia v. State Water Resources Control Board, No. D043877, 06 C.D.O.S. 797, 2006 DJDAR 1145. Filed January 26, 2006.
The Lawyers:
For the cities: Richard Montevideo, Rutan & Tucker, (714) 641-5100.
For the water board: Gregory Newmark, attorney general’s office (213) 897-2000.
