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Sacramento County Superior Court Upholds General Construction Permit and Rejects Numeric Limits for Construction Related Pollutants


On May 18, 2005, the Sacramento County Superior Court, in San Francisco Baykeeper et al. v. California State Water Resources Control Board et al., Case No. 99CS01929, rendered a significant victory for landowners and developers required to comply with the State Water Resources Control Board NPDES General Permit for Stormwater Discharges Associated with Construction Activity, Order No. 99-08-DWQ ("General Permit"). The Court upheld the existing General Permit and rejected arguments that the General Permit must contain numeric limits for construction related pollutants.

The General Permit requires all dischargers to develop a Storm Water Pollution Prevention Plan ("SWPPP") and implement Best Management Practices ("BMPs") that prevent the discharge of pollutants in storm water to water ways. In previous litigation, the Court determined that the General Permit did not provide for sampling and analysis of construction site storm water discharges in two instances where sampling and analysis is necessary to monitor the effectiveness of the BMPs in preventing water quality standard violations: (1) where storm water discharges flow directly from construction sites into receiving waters already impaired for sediment, and (2) where pollutants that are or should be known to occur on the sites are not visually detectable in storm water discharges having contact with the pollutants. As a result, the State Water Board modified the General Permit to include sampling and analysis requirements for sediment and visually nondetectable pollutants. In 2001, the Court required further clarification of four areas of the monitoring provisions. Accordingly, the State Water Board issued a fact sheet detailing procedures for sampling and analysis.

Petitioners San Francisco Baykeeper et al. claimed that the fact sheet did not comply with the Court's enforcement order because it failed to provide a specific and objective methodology for permittees to use in determining whether storm water discharges from their construction sites are causing or contributing to water quality standard violations in receiving waters. The State Water Board and Intervenors Building Industry Legal Defense Foundation and California Building Industry Association filed a motion for an order finding that the State Water Board complied in all respects with the Court's earlier writ concerning numeric effluent limitations for construction activities in California. On May 18, the Sacramento County Superior Court (L. Connelly) granted the motion.

In summary, the Court's ruling upholds the General Permit and the State Water Board's fact sheet on sampling and analysis, which does not require that the test results must comply with numeric limits for the pollutants analyzed. The ruling also includes helpful analysis about the scientific infeasibility of monitoring and testing construction run-off, and the appropriateness of relying instead on site-specific BMPs. This ruling is significant in light of the substantial attempts by anti-growth groups to force the incorporation of numeric effluent limitations into storm water permits in lieu of existing technology and practicability based standards that rely upon implementation of BMPs.

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