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California Supreme Court Declines to Consider Challenge to Zero Trash TMDL for Los Angeles River

By: Mary Lynn K. Coffee
04/25/06

On April 19, 2006, the California Supreme Court declined to hear an appeal by 21 southern California cities challenging a program adopted by the Los Angeles Regional Water Quality Board ("Regional Board") that made them responsible for eliminating, over a fourteen-year period, trash loads into storm drains that flow to the ocean.

In 2001, the Regional Board adopted a resolution to amend its Basin Plan to incorporate a Total Maximum Daily Load ("TMDL") of zero for trash in the Los Angeles River. The Regional Board adopted the trash TMDL as a result of a lawsuit brought by Heal the Bay and other environmental groups. The elimination of trash loads in Los Angeles area storm drains and flood control channels pursuant to the TMDL is to be phased over a fourteen-year period and is intended to eliminate all trash discharges to the Los Angeles River, which drains to the Pacific Ocean. The trash TMDL implementation program adopted by the Regional Board requires cities that discharge into the Los Angeles River to eliminate trash loads through water quality measures such as enhanced street sweeping, litter law enforcement, installation of nets at the end of storm drains and the utilization of trash capture devices. The practical issue is whether the water quality measures will be sufficient to achieve a trash load of zero.

A number of cities objected to the adoption of the zero trash TMDL arguing that it violated various provisions of the Clean Water Act, Porter-Cologne Water Quality Control Act and California Environmental Quality Act. In January 2006, a California Appellate court rejected virtually all of the cities' challenges to the trash TMDL in City of Arcadia v. State Water Resources Control Board, holding that the TMDL complied with both the Clean Water Act and the Porter-Cologne Water Quality Control Act. 135 Cal. App. 4th 1392 (4th Dist. 2006). However, in its decision the appellate court also held that the Regional Board's environmental analysis under the California Environmental Quality Act (CEQA) was inadequate, specifically with regard to the impacts of the trash TMDL on air quality, soils and traffic and the long term maintenance costs associated with compliance. Id. at 1426.

The California Supreme Court's refusal to hear the cities' appeal allows the Regional Board to move forward with its implementation of the zero trash TMDL for the Los Angeles River, subject to undertaking the required CEQA analysis. The question regarding whether water quality measures will be sufficient to achieve such a TMDL will remain a paramount concern for local jurisdictions and others responsible for constructing and operating storm drain facilities in areas tributary to the Los Angeles River. As a result of the recent ruling, it appears that the required review of long-term TMDL implementation and compliance costs of implementation will be one of the only remaining avenues available to concerned parties to address sufficiency of available water quality measures to achieve mandated treatment standards.

Mary Lynn K. Coffee is a Partner in Nossaman's Irvine office. She has extensive experience in compliance with, and permtting and approvals for development projects under local, state and federal resource protection laws, including the federal Clean Water Act (Sections 401, 402 and 404), the California Porter-Cologne Water Quality Act and the state streambed alteration provisions of the California Fish and Game Code. In this role, she has particular expertise in the development of construction and post-construction surface water quality compliance programs for existing and new real estate developments. She can be reached at (949) 833-7800 or mcoffee@nossaman.com.

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