The Water Report: Water Rights, Water Quality and Water Solutions in the West Issue 17

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In This Issue: Urban Stormwater Regulation .................. 1 Colorado River Interstate Water Banking ........... 11 Friant Dam & San Joaquin River Fisheries ..................... 15 Tribal Groundwater Rights: Lummi Decision ........ 24 Water Briefs ............... 25 Calendar ..................... 30 Upcoming Stories: Tribal Water Issues Municipal Stormwater Plans Nez Perce Settlement Climate Change & More! REGULATING URBAN RUNOFF R.,.,,N by Paul N. Singarella, Esq, Latham & Watkins, LLP (Orange County, CA) In 1987, Congress amended the federal Clean Water Act (CWA) defining Municipal Separate Storm Sewer Systems (MS4s) to be "point sources" — i.e., sources of discharges subject to National Pollutant Discharge Elimination System ( NPDES) permits. Municipalities throughout the United States have been brought into the NPDES program under the amendment's implementation schedule. The 1987 enactment includes a Maximum Extent Practicable (MEP) compliance standard. The MEP standard has proven contentious in numerous jurisdictions, where some regulatory agencies and certain public interest groups are arguing that municipal discharges should be required to meet water quality standards without regard to practicability. The MS4 NPDES permits in the Southern California region have been highly controversial since 2001, when a permit issued for the San Diego region seemed to require compliance with water quality standards. It is clearly infeasible – probably impossible – to capture and treat to the standards all urban runoff from such a large area. In December 2004, a California Court of Appeal held that the San Diego permit was not limited by the MEP standard. However, it did not reach the issue of compliance with water quality standards, finding that that issue was not ripe for judicial review. This article argues that the Court of Appeal's decision that MEP is a subordinate federal standard is contrary to the unambiguous intent of Congress, and presents policy rationales for measuring permit compliance with maximum practicable efforts (as opposed to compliance with water quality standards). Further, the Court's misgivings as to whether water quality standards "would ever be imposed" and the rejection of a "strict compliance" approach to those standards by the California State Water Resources Control Board during administrative review of the San Diego permit, signal to MS4 permit writers that permit provisions regarding water quality standards should reflect what is attainable. Subsequent to the San Diego decision, the California Supreme Court in a seperate water quality case held that permit writers must consider economics in issuing permits, when the State's requirements for water quality exceed federal requirements. A strong argument can be made that future MS4 permits (to be issued in 2006 and 2007) must respect continuing fiscal and technical challenges in controlling urban runoff. These permits cannot direct compliance with water quality standards absent an economic analysis and reasonableness assessment of how such compliance may be achieved. URBAN RUNOFF: A CHRONIC WATER QUALITY CHALLENGE Urban runoff in Southern California is in a chronic state of non - compliance with water quality standards. While urban runoff from any particular new development may meet the standards, on a regional basis where runoff also comes from a vast expanse of urban and suburban land developed over many decades, non - compliance is systemic. This condition is driven only in part by the sources of pollution affecting urban runoff quality. The fact that water quality standards were generally not developed with urban runoff in mind can make their application to municipal stormwater problematic, particularly when they are applied to locations upstream of open waters — including storm drains. Issue #17 July 15, 2005