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

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July 15, 20G -' The Water Report Urban Stormwater Limited Agency Discretion Burbank Challenge Economics Review Section 13241 Factors Had a set of facts where an agency required strict compliance with water quality standards been before the Browner Court, undoubtedly the Court would have addressed the outer bounds of discretion reserved under that last modifying clause of Section 402(p)(3)(B)(iii). However, the Court did not do so, as the only question presented was the validity of the permits in the case at hand, which did not contain numeric limits. Having already disposed of that question, it was unnecessary for the Court to address what factors would inform and limit the hypothetical exercise of the discretion that the Court recognized in the last modifying phrase of Subsection (iii). Does EPA or the State have discretion pursuant to the last modifying phrase of this key provision to require compliance with water quality standards? The dicta in Browner states it does. The question is, under what circumstances? The answer consistent with Browner is clear. The last clause in the section is not a grant of discretionary authority intended to consume the basic standard of Section 402(p)(3)(B) itself. Rather, in circumstances where an agency can demonstrate that compliance with water quality standards will be met with MEP, the agency may require such compliance. This interpretation is the only interpretation of the Browner dicta that preserves Congress' intent to assure relief to municipalities. THE CALIFORNIA SUPREME COURT NEW LIFE FOR ECONOMIC ANALYSIS AND REASONABLE MS4 PERMITS The BIA v. SWRCB Court held that permit provisions which require more than MEP are discretionary — not mandatory — under federal law. Thus, provisions more stringent than MEP must conform with state law. Importantly, the Court of Appeal rejected the State's argument that the San Diego permit was sustainable under state law. In Burbank vs. State Water- Board, 35 Cal. 4th 613, (2005) the Cities of Los Angeles and Burbank challenged a regional board permit they claim will require them to super -clean water already being released from water recycling plants to the Los Angeles River. The current level of treatment renders the water clean enough to irrigate crops, to swim in, and apparently even to drink. But the Los Angeles regional board is concerned it may not be clean enough for the Los Angeles River, a large portion of which is a concrete -lined channel. The cities claimed they would need to spend $175 million to super -clean the water beyond the recycling standards, and argued in Court that the highly speculative benefits are not worth the public expense. The agency refused to consider economics and cost - effectiveness, arguing it had done so years before in setting the standards being applied in the permit. However, when the standards were set, no one anticipated the agency would demand the super - cleaning of water at extraordinary expense to protect a marginal ecosystem at theoretical risk. The California Supreme Court unanimously held the regional board must look at economics, and the "cost of compliance" unless federal law proscribes such an analysis, as state law makes affordability and achievability important concerns. Justice Brown chastised the agency for playing a game of "gotcha" with the public purse, by refusing to look at economics at permitting when it matters, on the basis that economics were looked at long before, when no one could foresee, or assess the economics of, the future permit. She also said the agency had failed to keep its standards current, putting those who pay the compliance costs to meet the standards at great risk of spending funds to meet outdated standards. These twin, strong rebukes and the unanimous decision indicate the Supreme Court will look hard at regulatory action to ensure that water quality decision making is well informed, respects the scarcity of public funding and the concomitant need to put those funds to effective use. In the MS4 context, Burbank sets a powerful precedent as permit writers have argued throughout three MS4 permit cycles that the statutory factors of California Water Code Section 13241 were irrelevant to MS4 permits. The Section 13241 factors include: "[w]ater quality conditions that could reasonably be achieved," "economic considerations," "the need for developing housing," and water supply and recycling. Under Burbank, all MS4 permit provisions that are more stringent than MEP would be subject to the scrutiny of the Section 13241 factors. CONCLUSION The Southern California MS4 permits are slated to expire, and subsequently be reissued, in 2006 and 2007. It seems apparent that water quality standard excursions in urban runoff will persist for future permit cycles. A record of this reality needs to be made during the permit re- issuance proceedings. The actual efficacy and reasonable potential of using BMPs to address these water quality concerns should be studied and documented. The regulated community and `the regulators could forge common ground by having a frank exchange on the issue of what reasonably can be accomplished during the next permit cycle. If the agencies have no intent to insist on capture and treat, large -scale urban runoff plants, they should prescribe permit conditions that provide a compliance opportunity through BMPs. (continued) Copyright© 2005 Envirotech Publications; Reproduction without permission strictly prohibited.