Storm Water Permit Moratorium Lifted in Los Angeles Region

22 August 2008 Publication

Legal News Alert: Environmental

On July 2, 2008, the Superior Court of Orange County (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. Based upon that ruling, the Chief Counsel of the State Water Resources Control Board (State Water Board) issued a moratorium on all new enrollments under general National Pollutant Discharge Elimination System (NPDES) permits for storm water discharges in Los Angeles and Ventura Counties. However, on August 1, 2008, the Court signed an order allowing the water boards to continue to issue general NPDES permits under certain prescribed terms, thereby narrowly averting what could have been an untenable situation for developers and industry alike.

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 (NOI) to comply with the permit terms. These general permits contain provisions that require compliance with applicable water quality standards. An enrollment under a general permit is akin to issuing an NPDES permit for storm water discharges. Enrollment further requires the project or facility to develop a storm water pollution prevention plan to implement water quality standards set forth in the region’s Basin Plan.

The Court’s Decision
In a decision that sent shock waves through the Los Angeles development community, the Court initially held that the State Water Board must immediately cease enrollments for dischargers within the Los Angeles region, reasoning that NPDES permits contain provisions requiring compliance with water quality standards. Any enrollments of new storm water dischargers under the NPDES permits would therefore violate the terms of the writ. The prohibition was to remain in effect so long as the State Water Board remains subject to the terms of the writ of mandate issued by the Court. However, in its August 1, 2008 order, the Court clarified that the writ does allow the State Water Board to implement the terms of NPDES permits, as long as those terms are not used to enforce numeric water quality standards.   

What Is the Decision’s Effect?
The August 1, 2008 court order effectively allows water boards to apply and implement terms and provisions of their storm water permits, meaning the State Water Board can resume processing NOIs for the Los Angeles region. According to the Court, the writ does not prevent any action to implement, apply, or enforce any term or provision in any storm water NPDES permit, except to the extent that any such term or provision is used or designed to implement or enforce (i) any element of a Total Maximum Daily Load (TMDL), or (ii) any numeric limit that may be included in any such NPDES permit as a means of enforcing a standard outside of the TMDL process.

The Court’s clarification allows the State Water Board to resume the processing of enrollments for projects in the Los Angeles region. According to a memorandum from the State Water Board’s chief counsel on August 1, 2008, such processing is to be given the “highest priority,” given the likely delays because of the Court’s initial order.

Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information to our clients and colleagues.

If you have any questions about this alert or would like to discuss these topics further, please contact your Foley attorney or the following individuals:

Elizabeth A. Cason
San Diego, California

S. Wayne Rosenbaum
San Diego, California

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