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.
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