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Issue #17 The Water Report <br />The author wishes to <br />acknowledge the <br />contributions on technical <br />subjects from <br />Dr. Susan Paulsen <br />Flow Science, Inc, <br />Pasadena, CA <br />626/ 304 -1134 <br />To date, most regional boards have been unwilling to recognize a safe harbor based on the limits of <br />what is practicable and economically feasible in addressing the chronic water quality problem posed by <br />urban runoff. Water quality would benefit if the municipal permittees were given a meaningful <br />compliance opportunity, one that would reward good programs, and build trust that blame will not be <br />placed for water quality conditions beyond municipal control. <br />FOR ADDITIONAL INFORMATION, CONTACT: PAUL SINGARELLA, Esq, Latham & Watkins, L.LP (Costa Mesa, <br />CA), 714/ 540 -1235 or email: paul.singarella @lw.com <br />Paul Singarella has worked on water quality issues for 25 years, with experience across the country in <br />both state and federal courts and numerous local state and federal agencies. <br />ENDNOTES <br />1) Natural Resources Defense Council, Inc. v. Castle, (D.C. Cir. 1977) 568 F.2d 1369. <br />2) Draft Fact Sheed7echnical Report, San Diego Regional Water Quality Control Board Order No. 200 1 -01 (Oct. 11, 2000). <br />3) Reporter's Transcript of Proceedings, San Diego Regional Water Quality Control Board Order 2001 -01, Agenda Item 5 (Dec. 13, 2000). <br />4) Id. <br />5) San Diego Regional Water Quality Control Board Order No. 2001 -01, (Feb. 21, 2001). <br />6) Id. page D -4. <br />7) Id. <br />8) California is split into nine regions, each with a regional water quality control board, and each with a US EPA - approved water quality control plan containing local water quality <br />standards for that region. <br />9) State Water Resources Control Board Order WQO 2002 -0015, 29 -30 (Oct. 3, 2002). <br />10) Id. at page 4. <br />11) Susan C, Paulsen, E. John List, Environmental Defense Sciences, A Review of the Los Angeles Basin Plan Administrative Record (Feb. 2003). <br />12) Id. <br />13) Santa Ana Regional Water Quality Control Board Order No. R8- 2002 -0010, NPDES No. CAS618030 (emphasis added). <br />14) Los Angeles Regional Water Quality Control Board Order No. 01 -182, NPDES No. CAS004001 (Dec. 13, 2001) (emphasis added). <br />15) San Diego Regional Water Quality Control Board Order No. 2001 -01 (Feb. 21, 2001). <br />16) Fact Sheet/Technical Report, San Diego Regional Water Quality Control Board Order No. 2001 -01, (Nov. 6, 2001). In contrast to the San Diego permit, the Arizona permits at <br />issue in Browner found pre - selected BMPs to be the "functional equivalent" of meeting water quality standards. See discussion, infra Section IV.C. <br />17) Draft Response to Comments, San Diego Regional Water Quality Control Board Tentative Order No. 2001 -01. <br />18) Id. <br />19) The agency found that "urban runoff is the leading cause of water quality impairment in the San Diego Region," and "directly causes or contributes to all of the known receiving <br />water quality impairments in the San Diego Region." Id. Fact Sheet/Technical Report, supra note 17. The agency also found that, at permit issuance, each permittee except <br />one already "[c]ontributes to a violation of a water quality standard or is a significant contributor of pollutants..." Draft Fact Sheet/Technical Report supra note 3. <br />20) Regional Water Quality Control Board staff candidly disclosed what the San Diego permit would achieve, and what it would not achieve, finding "this permit has the ability to <br />slow down the ongoing degradation of our receiving waters ...." Reporter's Transcript of Proceedings, supra note 4 (repeating findings of Staff Report for Standard Urban <br />Storm Water Mitigation Plans (SUSMPs) and Numeric Sizing Criteria for Best Management Practices). Nowhere did staff conclude that the permit would reverse ongoing <br />degradation or restore compliance with standards for the receiving waters. Staff indicated that the permit had the "potential to actually improve the quality of our receiving <br />waters," but stressed to the board, "I want to make sure you understand that I don't mean overnight," concluding "we're talking at least 10 to 20 years." Id. <br />21) E.g., the permit states that, "[d]ischarges from MS4s which cause or contribute to exceedances of receiving water quality objectives for surface water ... are prohibited." San <br />Diego Regional Water Quality Control Board Order No. 2001- 01(Feb. 21, 2001). The permit's "cause or contribute" prohibition is the overarching permit requirement, <br />repeated throughout the permit. <br />22) Cal. Water Code § 13320 (2005). <br />23) State Water Resources Control Board Order WQ 2001 -15 (2001). <br />24) [Cite to WQO.] <br />25) [Cite to WQO at 10.1 <br />26) Defenders of Wildlife v. Browner, (9" Cir. 1999) 191 F.3d 1159. <br />27) 38 Fed. Reg. 13527, 13530 (1973) (codified at 40 C.F.R. § 125.4(f) (1974)). <br />28) Natural Resources Defense Council, Inc. v. Costle (D.C. Cir. 1977) 568 F.2d 1369. <br />29) Id. <br />30) Natural Resources Defense Council, Inc. v. United States EPA (9" Cir. 1992) 966 F.2d 1292, 1296 (describing post -NRDC v. Costle challenges). <br />31) Congressman Rowland, "drafted and introduced the stormwater runoff program ...." 133 Cong. Rec. H515 (daily ed. Feb. 3, 1987). <br />32) Id. <br />33) Remarks of Senator Montoya, 117 Cong. Rec. 38808 (Nov. 2, 197 1) <br />34) Id. <br />35) Reviewing the 1972 Clean Water Act, the Seventh Circuit observed that, "[i]t is clear from §§ 301 and 510 of the Act, and the legislative history, that the states are free to force <br />technology .... even at the cost of economic and social dislocations caused by plant closings." United States Steel Corp. v. Train (7" Cir. 1977) 556 F.2d 822, 838. <br />36) 33 U.S.C. § 1342(p)(3)(A) (2005). <br />37) 33 U.S.C. § 1342(p)(3)(B) (2005). <br />38) Union Electric Co. v. EPA (1976) 427 U.S. 246, 256 -57 (addressing technology - forcing provisions in Clean Air Act). <br />39) Id. at 258. <br />40) Id. at 269 -70 (Powell, J., concurring). <br />41) The San Diego permit is technology- forcing than Congress as Congress took seriously the question as to whether the technology would arrive some day. While describing <br />Congress as "betting on the come" by "relying on our citizens in the near future to develop complex technology," Justice MacKinnon, concurring in NRDC v. Costle, said U.S. <br />EPA "has shown that it takes a realistic view of ... the task of meeting the difficult requirements and objectives of the [Clean Water] Act." Natural Resources Defense <br />Council, Inc. v. Costle, (D.C. Cir. 1977) 568 F.2d 1369, 1383. There is no similar "realistic view" reflected in the agencies' deliberations in the instant case. <br />42) 132 Cong. Rec. 32400 (Oct. 16, 1986); 133 Cong. Rec. S752 (daily ed. Jan. 14, 1987). <br />43) See also NRDC v. U.S. EPA (91" Cir. 1992) 966 F.2d 1292,1308 (no "specified level of reduction of any pollutants" required under Section 402(p)(3)(B)(iii); and Environmental <br />Defense Cit., Inc. v. EPA, (9" Cir. 2003) 344 F.3d 832, 854 ( "the plain language of § 402(p) ... expresses unambiguously Congress's intent that EPA issue no permits to <br />discharge from municipal storm sewers unless those permits `require controls to reduce the discharge of pollutants to the maximum extent practicable. <br />44) Browner, supra, 191 F.3d at 1161. <br />45) Fact Sheet, VPDES Permit No. AZS000003 City of Phoenix Municipal Separate Storm Sewer System, dated January 15, 1997. <br />46) Browner, supra, 191 F.3d at 1161 (emphasis added). <br />47) Id. <br />48) Browner, supra, 191 F.3d at 1164. <br />49) Browner, supra, 191 F.3d at 1165. <br />50) Court of Appeal agrees this portion of the Browner case is dicta. See, Opinion, p. 28 [add cite]. <br />51) Browner, supra, 191 F.3d at 1166. <br />10 Copyright© 2005 Envirotech Publications; Reproduction without permission strictly prohibited. <br />