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Wednesday, September 10, 2008

Court Decision Freezes Stormwater Permitting; Entire Program in Limbo

July 2008 court decision and its aftermath has effectively frozen construction and stormwater permitting in southern California and created a game of high stakes political chicken among the Los Angeles Regional Water Quality Control Board ("Regional Board"), the regulated community, and the Court system.

A decision by an Orange County Superior Court judge ordered the Regional Board to set aside its March 3, 2005 Resolution (No. 2005-003) concluding the 2004 Basin Plan Triennial Review and adopting the 2004 Prioritized List of Basin Plan Issues for Investigations. The court also imposed specific requirements that will apply to any reconsideration of the 2004 Review or to the next scheduled review, and halted any regulatory activity designed to achieve "potential" beneficial uses for storm water and to any regulatory activity relating to water quality standards developed without consideration for economic impacts or for water quality conditions that "could reasonably be achieved."

The decision has sent shock waves through all affected stakeholders. For example, a July 16, 2008 memorandum from the Chief Counsel of the State Water Resources Control Board ("State Board") concludes that the Regional Board must immediately cease enrollments under statewide general National Pollutant Discharge Elimination System (NPDES) permits for discharges of construction and industrial storm water within the Los Angeles Region. This prohibition on new enrollments will remain in effect until such time as the State Board reviews, and, as appropriate, revises the water quality standards in the Los Angeles Basin Plan, as applied to stormwater discharges, in a manner consistent with State law. The freeze on new enrollments means that no new construction projects can begin in this region because all such projects must comply with the construction stormwater program, which has now been gutted.
This decision serves as the most recent chapter in an action brought by a group of 22 Southern California cities, along with the Building Industry Defense fund, against the State Board and the Regional Board seeking to compel these public agencies to correct mistakes of law and procedure committed during the 2004 Basin Plan Triennial Review.

This order reflects the court's judgment that the 2004 Triennial Review failed to give due consideration for the mandatory factors and requirements specified in the state Water Code. The staff report filed with the Regional Board on January 12, 2005 includes a commitment to consider revisions to beneficial uses proposed by staff and stakeholders and states that beneficial uses include "both existing and potential uses" in contravention of Water Code section 13241(a), which states that the uses that may be considered shall be past, present, and "probable future" beneficial uses. Despite this, the plan includes a provision for re-evaluation of potential uses.

The Court also questioned another provision in the Basin Plan that gives high priority to incorporating by reference provisions contained in the California Toxics Rule (CTR) promulgated by the US EPA that sets numeric criteria for priority toxic pollutants for all inland surface waters and enclosed bays and estuaries in California. Although such administrative action would not immediately place new requirements on permittees, it nevertheless revises existing water quality objectives without due consideration for Water Code sections 13241(c), requiring analysis that water quality conditions be reasonably achievable and (d), requiring consideration of economic impact.

This decision sends the Boards of both agencies back to the planning process for Basin Plan reconsideration or review in light of the court's decision. In the interim, and at a minimum, the enrollment of new dischargers in the Los Angeles region under the existing general storm water permits will cease until new Basin Plan standards are approved, or the court's decision is modified or overturned. An appeal of the decision by the State and Regional Board is expected.
For environmentalist activists, the decision clearly constitutes a defeat. Their efforts to use the TMDL process to impose strict discharge requirements on local impaired water bodies will now depend on how the water board balances water quality objectives with the statutory factors enumerated in the Water Code, which mandate consideration of feasibility and economic concerns.

By responding with the drastic measure of freezing all stormwater enrollments, the Regional Board is effectively playing a high stakes game of chicken with the Court and the regulated community. Concurrently, the Regional Board has also sought a new trial. In the interim, the entire local stormwater permitting process remains in limbo.

Kenneth A. Ehrlich is a partner in Jeffer, Mangels, Butler & Marmaro's Government, Land Use, Environmental & Energy Department. The firm has offices in Los Angeles, San Francisco and Orange County.

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