Storm Water Permit Moratorium in Los Angeles Region

28 July 2008 Publication

Legal News Alert: Environmental

On July 2, 2008, the Superior Court of California, County of Orange (Court) issued a ruling in the matter of Cities of Arcadia, et al. v. State Water Resources Control Board, et al., (NO. 06CCO2974). The case addressed the impact of a peremptory writ of mandate on enrollments under the general industrial and general construction storm water permits in the Los Angeles region. The question the Court had to decide was whether the State Water Resources Control Board (State Water Board) could continue to process enrollments under these general permits for storm water in the Los Angeles region.

What Does a General Permit for Storm Water Do?
In California, the State Water Board issues general permits for storm water discharges associated with construction and industrial activities. Rather than issuing permits on a project or facility basis, the general permits allow projects and facilities that meet certain eligibility requirements to enroll under the statewide permits. Enrollment is accomplished through submission of a Notice of Intent to comply with the permit terms. These general permits contain provisions requiring compliance with applicable water quality standards. An enrollment under either general permit is akin to issuing a National Pollutant Discharge Elimination System (NPDES) permit for storm water discharges. In the Los Angeles region (i.e., the geographic region controlled by the Los Angeles Regional Water Quality Control Board, which includes Los Angeles and Ventura counties, plus parts of Orange County), enrollment further requires the project or facility to develop a storm water pollution prevention plan to implement water quality standards set forth in the Los Angeles region’s Basin Plan.

The Court’s Decision
In a decision that is likely to send shock waves through the Los Angeles development community, the Court held that the State Water Board must immediately cease enrollments for dischargers within the Los Angeles region. This prohibition is to remain in effect as long as the State Water Board remains subject to the terms of the writ of mandate issued by the Court.

The Court’s peremptory writ is based upon its invalidation of the Los Angeles Water Board’s triennial review of its Basin Plan, conducted in 2005. Specifically, the Court found that the Los Angeles Water Board had not analyzed the reasonableness of its water quality standards as they relate to storm water. As a result, the Los Angeles Water Board is required to consider the reasonableness of water quality standards as applied to storm water as well as the economic considerations and other factors contained in California Water Code Section 13241. The Court ordered the Los Angeles Water Board and the State Water Board to review and revise water quality standards that apply to storm water. Until such a review is complete, application and enforcement of water quality standards for storm water in the Basin Plan may not be enforced.

What Is the Effect of the Decision?
At its core, the Court’s ruling means that any new enrollments under the general permit would violate the terms of the peremptory writ. This has the further effect of placing a moratorium on all new construction or industrial activities within the Los Angeles region, because to engage in such activities would violate the Clean Water Act, which is enforceable by citizen suit. Moreover, based upon the Court’s reasoning that the Basin Plan is inadequate, it is unclear whether even individual or federal general permits would be available for such activities.

In addition to the moratorium, the Court has created another hurdle for future construction and industrial activities. Basin Plan revisions, unlike permit issuances, are subject to the California Environmental Quality Act (CEQA) and the cost-benefit analysis under Water Code Section 13241, noted above. Both of these requirements add significant time to the Basin Plan revision process. Additionally, if anyone contests the Basin Plan revisions (through the CEQA public participation provisions), no matter how ludicrous the challenge, the moratorium on new permits could continue.

Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information to our environmental clients and colleagues. If you have any questions about this issue or would like to discuss this topic further, please contact your Foley attorney or any of the following individuals:

Elizabeth A. Cason
San Diego, California

S. Wayne Rosenbaum
San Diego, California

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