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California Supreme Court holds that the State Must Evaluate Economic Considerations when Establishing Water Discharge Requirements that Exceed Federal Standards

By: Mary Lynn K. Coffee, Paul S. Weiland
04/20/05

On April 4, 2005, the California Supreme Court issued a decision that will affect the way the Regional Water Quality Control Boards set permit standards. In City of Burbank v. State Water Resources Control Board, California’s highest court held that both state and federal law bar a Regional Board from adopting a discharge standard that is more lenient than the applicable federal standard. At the same time, the Court held that under state law a Regional Board must take into account economic considerations (including the costs of compliance) when adopting a discharge standard that exceeds the applicable federal standard. To view a copy of the case, click here.

In City of Burbank, the Cities of Los Angeles and Burbank challenged numeric discharge requirements for treated wastewater imposed by the Los Angeles Regional Water Quality Control Board in 1998, which set daily maximum limitations for more than 30 pollutants. The requirements were based on a Basin Plan, which the Regional Board adopted in 1994. That Plan contained general narrative criteria relating to existing and potential future beneficial uses and water quality objectives for the Los Angeles River and its estuary. The plaintiffs alleged that achievement of the numeric requirements would be too costly and that the pollutant restrictions in the NPDES permits were unnecessary to meet the Basin Plan objectives.

The backdrop for this litigation is a regulatory scheme for water pollution control that includes both federal and state law. The federal Clean Water Act establishes a prohibition on the discharge of pollutants into waters of the United States but authorizes discharges that are made under a National Pollution Discharge Elimination System (NPDES) permit. In addition, the Act establishes effluent limitations (i.e., restrictions) that must be met by NPDES permit holders. The Clean Water Act allows states to administer the federal program and to establish effluent limitations under state law that are more restrictive than those established by federal law.

The State Water Resources Control Board and nine Regional Water Quality Control Boards administer the federal NPDES permit program along with the state analog to the federal Clean Water Act, the Porter-Cologne Act. Porter-Cologne requires the Regional Boards to develop basin plans that address beneficial uses of water to be protected as well as water quality objectives. In addition, section 13377 of Porter-Cologne specifies that discharge requirements must comply with the Clean Water Act. In City of Burbank, the Court interpreted this provision of Porter-Cologne to bar a Regional Board from adopting a discharge requirement that is more lenient than the applicable federal requirement. Thus, Regional Boards cannot consider economic factors to justify imposing pollutant restrictions that are less stringent than federal requirements.

The Court interpreted two other provisions of Porter-Cologne – section 13263 and 13241 – to require Regional Boards to take into account economic considerations when adopting discharge requirements that exceed the applicable federal requirements. As a result, the Regional Boards are obligated to consider the costs of compliance when deciding whether to establish requirements that are more stringent than federal requirements. This is the case irrespective of whether those more stringent requirements are narrative or numeric.

The Court directed the Court of Appeal to remand the case to the trial court to determine whether the numeric limitations set by the Los Angeles Regional Water Quality Control Board in the challenged permits are more stringent than required under federal law in which case the Regional Board should have taken into account economic considerations prior to adoption of the limitations. City of Burbank is likely to have major ramifications both with respect to existing discharge requirements that exceed federal requirements and the promulgation of future discharge requirements by the Regional Boards that exceed federal requirements. Such ramifications may be expected to extend to stormwater discharge requirements as well as wastewater requirements, such as those that were at issue in the litigation.

Please contact one of the authors or any member of our Land Use group for more information about the decision, questions about its implications, or any other water quality issue.

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