A limit on the amount of trash that can be discharged into the Los Angeles River has been upheld by the Ninth U.S. Circuit Court of Appeals. The court rejected a challenge filed by 22 cities in Los Angeles County to a limit established by the Los Angeles Regional Water Quality Control Board.
The federal Clean Water Act requires regulatory agencies to establish TMDLs (total maximum daily loads) for pollutants in “impaired” water bodies. In 1997, environmental groups sued the U.S. Environmental Protection Agency for not establishing TMDLs for the Los Angeles region. The lawsuit resulted in a consent decree in which the EPA agreed to set TMDLs for all significant sources of water pollution, including stormwater and urban runoff.
One of the required TMDLs was for trash in the Los Angeles River watershed. The consent decree gave the regional board until March 2001 to submit a trash TMDL. After the regional board missed the deadline, EPA established its own trash TMDL in March 2002. Five months later, the regional board submitted a more comprehensive trash TMDL to the EPA. The EPA approved the regional board’s TMDL, which effectively superceded the federal version.
Unhappy with the restrictions established by the regional board, the cities sued the EPA, arguing that the state regulations may not supercede the federal TMDL. A federal district court ruled for the EPA. On appeal, the Ninth Circuit upheld the lower court.
The cities relied on the “constructive submission” doctrine. Under this argument, the state’s failure to meet the deadline triggered the EPA’s duty to prepare a TMDL and eliminated the state’s authority to act. The court disagreed, holding that the Clean Water Act provides for action at both the state and federal levels.
“So long as the state does not attempt to adopt more lenient pollution control measures than those already in place under the Act, the Clean Water Act does not prohibit state action,” Judge William Canby Jr. wrote for the court.
The decision was a disappointment to a number of jurisdictions fighting TMDLs that were prepared by regional boards after initial EPA action.
The case is City of Arcadia v. United States Environmental Protection Agency, No. 03-16309, 05 C.D.O.S. 5144, 2005 DJDAR 7066. It was filed June 15, 2005.
