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Superior Court Decision Mandates Balance in Adoption of Storm Water Quality Regulations

By: Mary Lynn K. Coffee
07/09/08

In a decision that could dramatically improve the regulatory environment for local governments and regulated industries that must comply with storm water regulations, on July 2, 2008, an Orange County Superior Court ordered the Los Angeles Regional Water Quality Control Board ("L.A. Regional Board") to review and reconsider storm water quality regulations contained in the Water Quality Control Plan for the Los Angeles Region ("Basin Plan").  The Court found that the Basin Plan presently fails to properly comply with statutes requiring balancing of economic impact, need for housing, physical and chemical characteristics of storm water, and other considerations. The Court issued a writ invalidating portions of the Basin Plan and directing review and reconsideration of beneficial uses and water quality objectives (collectively called "Water Quality Standards") as they apply to storm water and urban runoff (collectively called "Stormwater"). See City of Arcadia v. State Water Resources Control Board, Case No. 06CC02974 (July 2, 2008) ("Order").  To view the Court's Order and Peremptory Writ of Mandate, click here.

The Court further ordered the L.A. Regional Board to suspend all activities relating to the implementation and enforcement of the Water Quality Standards in the Basin Plan as applied to Stormwater, whether through Total Maximum Daily Loads ("TMDLs") or other Basin Plan amendments or regulations, National Pollutant Discharge Elimination System ("NPDES") permits, water quality policies or some other mechanism. As a result of the Order, the L.A. Regional Board cancelled a noticed Board workshop scheduled for July 7 relating to the municipal stormwater permit for the County of Ventura.

A coalition of 18 Los Angeles County cities and the Building Industry Legal Defense Foundation ("BILD") sued the Los Angeles Regional Board following its refusal to review and revisit, during the 2004 triennial review process, its underlying Basin Plan and Water Quality Standards as they applied to Stormwater. The Cities and BILD argued that the L.A. Regional Board failed to comply with the federal Clean Water Act sections 1313(a) and (c) and California Water Code sections 13000 and 13241 when they adopted Water Quality Standards in the Basin Plan in the early 1970's, and subsequently renewed those Water Quality Standards, without taking into account available information regarding the unique characteristics of Stormwater to include: the extreme variability of pollutant loads and concentrations associated with Stormwater and the economic impacts of Stormwater regulations.

State and federal statutes require Regional Boards to consider a number of different factors in adopting Water Quality Standards, including the environmental characteristics and quality of water in the waterbody under consideration, the water quality conditions that can be reasonably achieved, the economic impacts of proposed Water Quality Standards, and the need for housing in the region.

The Superior Court agreed that the L.A. Regional Board violated those statutes in adopting and renewing Water Quality Standards in the Basin Plan and vacated the L.A. Regional Board's action approving its most recent 2004 Triennial Review of the Basin Plan. The Court ordered the L.A. Regional Board to review and, where appropriate, revise Water Quality Standards applicable to Stormwater in light of all the factors discussed above. In addition, the Superior Court ordered elimination from the Basin Plan of all "potential" beneficial uses and related water quality objectives, finding that it is contrary to State and federal law to adopt "potential" beneficial uses and related Water Quality Standards.

This decision is important for a number of reasons. First, the Court recognized the unique water quality characteristics of Stormwater and held that the L.A. Regional Board could not simply ignore those unique physical and chemical characteristics when adopting or renewing Water Quality Standards, NPDES permit requirements, TMDLs and TMDL limits, and other regulatory limitations applicable to Stormwater. Second, the Court recognized the critical importance of, and for the first time enforced, Regional Board compliance with California Water Code Sections 13000 and 13241 in adopting and renewing Water Quality Standards and related TMDL and NPDES permit requirements. Regional Board compliance with state law, to include balancing of all factors listed in the statutes, is crucial to development of Water Quality Standards that protect water quality, but also are feasible to implement.

As a result of this ruling, the L.A. Regional Board must (and other similarly situated Regional Boards should) balance and consider these statutory factors in establishing, reviewing, and revising Basin Plan Water Quality Standards.  They should also consider these statutory factors in regulatory actions necessary to implement and enforce Water Quality Standards, including setting requirements and conditions for industrial storm water permits (to include construction storm water permits), municipal storm water permits, and Clean Water Act section 401 water quality certifications. The balancing required by the Court should lead to more reasonable and appropriate, yet protective, Stormwater regulations and standards.

Mary Lynn K. Coffee has extensive experience in compliance with, and permitting and approvals for development projects under local, state and federal resource protection laws and 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 mlcoffee@nossamam.com.

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