California Court Strikes Down Numeric Effluent Limits in the Construction General Permit
In the latest of a long string of litigation disputes between California water authorities and the building, contracting and construction businesses, a California court issued a ruling on December 2, 2011 that immediately impacts storm water runoff permits for contractors and developers and may have further impact on municipality, transportation (trucking, ports, airports, warehousing) and manufacturing storm water permits.
The California State Water Resources Control Board (“Water Board”) has regulated storm water runoff from construction activities since 1992. In 2009, the Water Board adopted a revised Construction General Permit (“CGP”) that applies to storm water runoff from certain construction activities more than one acre. The revised CGP became effective July 1, 2010.
In California Building Industry, Association et. al. v. State Water Resources Control Board,[1] the building industry and others sued to invalidate many of the revised CGP provisions, including, but not limited to, that the CGP imposes turbidity and pH numeric effluent limits (“NELs”) “without evidentiary support and without consideration of the factors enumerated for the evaluation of NELs” pursuant to the Clean Water Act (“CWA”).
Although the court ultimately struck down NELs for pH and turbidity in the CGP, it did so only on the basis that these numeric Technology Based Effluent Limitations (“TBELs”) were improperly promulgated. More specifically, the court stated that the Water Board must follow federal Clean Water Act requirements that require, in developing a TBEL, the determination of “the degree of effluent reduction attainable through the application of the best conventional pollutant control technology.”[2] Subsequently, the court gave the Water Board guidance on the proper procedure to comply with this CWA requirement, including: identifying available technologies, gathering data characterizing the performance of the technologies under various site conditions, and deriving a numeric TBEL or NEL consistent with the performance data.
Imposition of numeric TBELs in permits stretches far beyond the construction industry. Environmental groups and the Water Board have promoted NELs to regulate storm water discharges from municipalities, transportation and manufacturing facilities. The opinion should provide fodder for these facilities regulated by the industrial general permit (“IGP”) because the Water Board is unlikely to try to pass NELs for the IGP without going through a time consuming and resource intensive process, as described, in part, above. With respect to the CGP, however, the Water Board may simply revise and reissue the CGP using the guidance/roadmap provided by the court.
In addition, the court also upheld the absolute prohibition on debris discharges in the CGP on grounds that it is within the Water Board's authority to do so. This may be a vehicle for citizen suits against construction permittees.
It should be noted that the court sided with the Water Board on many other issues that industry was raising in this case. For instance, public participation was deemed adequate even though the construction permittees argued otherwise. Groups such as the broad based W.A.T.E.R. coalition have made similar arguments about the IGP in their comments. If the IGP is challenged on similar grounds, the court may reject industry's argument because, based on this case, it appears that the Administrative Procedures Act may not apply to a quasi-adjudicatory permit.
The court also rejected most of the construction industry's arguments that many CGP conditions are more stringent and should thus be subject to an economic (and other factors) analysis under Porter-Cologne.
This case, however, is not the final word. It can be appealed to the appellate court and the California Supreme Court.
C&F attorneys have been involved in all phases of municipal, industrial and construction storm water permitting. We have represented the California Metals Coalition and its affiliates for over twenty years fighting for sound and reasonable regulations. CMC’s Executive Director co-chairs the W.A.T.E.R. coalition. A copy of the opinion can be found at http://www.metalscoalition.com/CBIA_StormWater_Ruling_Dec2011.pdf.
[1] Case No. 34-2009-80000338, Superior Court of California, County of Sacramento.
[2] The court's analysis only applies to numeric effluent limitations for conventional pollutants which are subject to the less stringent BCT standard and not for metals (considered toxic pollutants) which are subject to the BAT standard.
View Other News
California Court Strikes Down Numeric Effluent Limits in the Construction General Permit
December 13, 2011
STORM WATER SEMINAR--Santa Ana, CA
August 11, 2011
Major Water Quality Decision Made in Ninth Circuit Court of Appeals
August 8, 2011
C&F Partner Reappointed to LACBA Environmental Section Executive Committee
August 8, 2011
C&F Partner Takes Leadership Role in Fight for Bikers’ Rights
August 8, 2011
More Prop. 65 Actions Slam the Food Industry
August 1, 2011
Klamath and Mateel Issue 60 Day Notice for Prop 65 Violation
July 21, 2011
Funderburk Appointed to UCLA Advisory Board on Lead Free Copper Based Alloys
June 24, 2011
Funderburk to Address California Metals Coalition
May 19, 2011
C&F Partner Sets New Precedent with Rare Verdict in Bicycle Hit-And-Run Case
November 11, 2010
Insurer Must Defend Beneficiaries and Trustees
November 6, 2009
Castellón and Funderburk Address Lead Free Conference on AB 1953
July 16, 2009