Defenders of Wildlife V Browner 191 F3d 1159 (9th Cir 1999) Law Review
John J. Harris is a Main with the law firm of Casso & Sparks LLP; he tin be reached at jharris@cassosparks.com.
For the final xxx years, well-nigh California cities and counties accept operated their municipal dissever storm sewer systems (MS4) under National Pollutant Belch Elimination Organization (NPDES) permits issued past a regional h2o quality control lath nether both the federal Clean H2o Human actionone and California'due south Porter-Cologne Water Quality Control Act2. Ane of the main points of contention between cities and the water boards has been the price of achieving h2o quality goals – the water boards have steadily imposed more restrictive requirements in municipal NPDES permits, while expecting cities and counties alone to comport the costs.
Two January 2021 decisions by California appellate courts, one unpublished, City of Gardena v. State Water Resources Control Board 3, and one published, Metropolis of Duarte v. State H2o Resources Command Lath iv, highlight, just fail to clearly resolve this outcome. In both cases, the courts of entreatment reversed trial court decisions favorable to cities.5
Industrial five. municipal discharges
California's NPDES permitting organisation regulates stormwater discharges under both state and federal police.six While permits for industrial discharges typically require compliance with numeric criteria, detailing specific pollutant concentrations known as Numeric Effluent Limits (NELs),7permits for municipal discharges do not, based on the recognition that cities take minimal command over the quality of urban runoff. Instead, MS4 permits contain narrative criteria8 and "require controls to reduce the discharge of pollutants to the maximum extent practicable,"9 a bottom standard.10
In 2015, the California Supreme Court held in Department of Finance five. Commission on State Mandates 11 that h2o boards are "not required by federal police force to impose any specific allow conditions" in MS4 permits, simply have the discretion to impose more stringent requirements than federal law. However, when water control boards practice that discretion, they must comply with section 13241 of the California Water Code, which requires water command boards to consider a number of factors, including economic considerations, when issuing permits.12 The California Supreme Court specifically held in City of Burbank five. Land Water Resources Control Lath 13 that imposition of NELs in an NPDES permit requires consideration of the permittee'southward cost of compliance.
Case facts
In 2012, a local water control board issued a renewed MS4 permit requiring 86 Southern California municipalities to reduce or prevent pollutants discharged through storm sewer systems by meeting sure NELs.14 The municipalities had already spent millions of dollars implementing programs to meet prior permit requirements and had steadily achieved notable improvements in the quality of stormwater discharges. Despite that progress, the 2012 MS4 Permit was the first in California, and probable, the state, to require cities to strictly comply with NELs.
Previously, the aforementioned water control board had issued an MS4 allow to Ventura County without any NELs, fifty-fifty though the permit covered overlapping watersheds.15 Additionally, the State Water Resource Control Lath decided not to include NELs in a allow issued to Caltrans for the same geographic expanse16 and did non include a like requirement in the afterwards Phase 2 Small-scale MS4 Permit.17
The water board imposed this sweeping change in the 2012 MS4 permit for Los Angeles Canton without any environmental or scientific review and without whatever consideration of the enormous capital and maintenance costs that the permittees would be required to incur to completely overhaul their stormwater management programs to meet these new NELs. As a issue, the cities of Gardena and Duarte sued, and another cities joined in the Gardena suit equally real parties in involvement.
Trial court rulings
The trial court reviewed an administrative record of more than 200,000 pages, and conducted nine days of trial and multiple postal service-trial hearings over a 2-year menstruation. Ultimately, the trial court issued two identical rulings in favor of the cities, setting aside the NELs. The trial court held that the water lath violated section 13241(d) of the Water Code because it failed to consider the costs the permittees would incur in complying with the new NELs. The water lath appealed.
Courtroom of appeal ruling
The court of entreatment reversed the trial court's decisions, but its rationale for doing and then seems inconsistent with established caselaw. Starting time, the court dodged the chief issue in the case by "assuming without deciding" that the new NELs were more than stringent than federal law. The court did non have to make that assumption considering that cases accept conspicuously established that federal law does not require NELs in MS4 permits.
The court then addressed the second issue, "Whether the Water Control Boards sufficiently considered the necessary factors nether H2o Lawmaking section 13241." The trial court had found that none of the water board's evidence in the record relating to "economical considerations" included any gauge of the cost of compliance with the NELs. The courtroom of appeal ignored that finding on the grounds that "the cost of compliance is i element, merely not the only i, to be considered every bit part of the economic considerations factor." The courtroom'southward approach appears contrary to the California Supreme Court'south direction in the City of Burbank case that the water boards must consider the costs of compliance equally function of its "economic considerations" analysis.18
The court of appeal besides misapplied the standard of review. The trial court was required by state law to "exercise its independent judgment" in reviewing the water board'southward findings in the 2012 Permit19 and to "counterbalance all the evidence for itself and make its own decision about which party'south position is supported by a preponderance of the evidence."twenty The courtroom of appeal should have reviewed the trial court's decision to determine if its findings were supported past substantial evidence, meaning the appellate courtroom should have adamant "whether any rational finder of fact could have made the finding that was fabricated below." However, instead of deferring to the trial court's findings, the court independently reviewed the water board's findings and concluded that the water board "sufficiently complied with their obligations to consider the Water Code section 13241 factors as a matter of law."21 On that ground, the court reversed the trial courtroom'southward judgment.
Takeaways
There are a few key takeaways from these cases. Outset, the two opinions tacitly confirmed the cities' position that federal constabulary does not require NELs in MS4 permits, an important bespeak for cities.
Second, the courtroom finer held that when issuing an MS4 permit, water boards are required to consider the factors gear up forth in Water Code section 13241, including economic considerations – something that the h2o boards have steadfastly refused to do. That was another positive property for the cities and volition be helpful in future permit proceedings.
However, the opinions create uncertainty regarding the manner in which the water boards consider economical factors. The California Supreme Court was clear in the City of Burbank case that a permittee's cost of compliance with permit terms must be considered; but the courtroom of appeal plant that compliance costs were just one of the economical factors that could exist considered.
Both Gardena and Duarte have filed petitions for review with the California Supreme Court, which have non been determined every bit of the appointment of publication to Western City magazine. The California Supreme Court has the opportunity to sort out the appellate courts' contradictory holdings on their petitions. If it chooses to deny review, farther litigation betwixt California cities and state and local water boards may be necessary to finally resolve these important questions.
About Legal Notes
This column is provided every bit general information and not as legal advice. The law is constantly evolving, and attorneys can and do disagree about what the police requires. Local agencies interested in determining how the law applies in a item situation should consult their local agency attorneys.
Footnotes
[1] Encounter 33 U.S.C. § 1342(b), (c)(1).
[ii] H2o Code §§ 13000, et seq.
[three] 2021 WL 289363 (January 28, 2021). Unpublished cases, unlike published cases, cannot be cited equally precedent.
[4] threescore Cal.App.5th 258 (2021).
[5] Mr. Harris represented the Metropolis of Gardena at trial and on entreatment. The commentary in this article represents Mr. Harris' personal perspective and does not necessarily reflect the views of the City of Gardena or any clients of Casso & Sparks, LLP.
[half-dozen] Building Industry Ass'northward of San Diego County v. Country Water Res. Control Bd., 124 Cal.App.4th 866, 875 (2004).
[vii] 33 UsC. § 1342(p)(3)(A).
[8] City of Burbank, supra, 35 Cal.quaternary 622, fn.4.
[ix] 33 U.South.C. § 1342(p)(3)(B)(iii).
[10]Defenders of Wildlife v. Browner, 191 F.3d 1159, 1164 (9th Cir. 1999).
[11] 1 Cal.5th 749, 767 (2016).
[12] Water Code § 13241(d).
[13] City of Burbank, supra, 35 Cal.4th 625.
[14] Social club No. R4-2012-0175 as amended by State H2o Lath Order WQ 2015-0075; NPDES Allow No. CAS 004001, "Waste Belch Requirements for Municipal Separate Storm Sewer System (MS4) Discharges Inside the Littoral Watersheds of Los Angeles County, Except Those Discharges Originating from the Urban center of Long Embankment MS4".
[15] Order R4-2010-0108 NPDES Permit No. CAS 004002- "Waste Discharge Requirements for Tempest Water and Non-Storm H2o Discharges from the Municipal Carve up Storm Sewer System within the Ventura County Watershed Protection District, Canton of Ventura and the Incorporated Cities Therein".
[xvi] Country Lath Lodge No. 2012-0011-DWQ
[17] State Lath Order No. 2013-0001-DWQ
[18]City of Burbank, supra, 35 Cal.4th at p. 625.
[19] Water Code §13330 (eastward); Code of Civil Process § 1094.5 (c).
[twenty] Coastal Environmental Rights Foundation v. Cal. Regional Wat. Quality Control Bd, 12 Cal.App.5th 178, 188 (2017).
[21]City of Duarte, supra, threescore Cal.App.fifth at p. 481.
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Source: https://www.westerncity.com/article/california-municipal-stormwater-permits-recent-court-cases-cities-should-consider
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