Regional Board's Stormwater Permit Upheld Without Environmental Study

A Regional Water Quality Control Board permit that mandates how Los Angeles County and 84 cities in the county manage stormwater discharges is not subject to the California Environmental Quality Act, an appellate court has ruled.

The Second District Court of Appeal originally ruled that the Los Angeles Regional Water Quality Control Board had to conduct a “limited” CEQA review of the stormwater permit. But the board asked the court to reconsider, and the court changed its ruling — an extremely rare occurrence.

The permit in question was issued in 2001 and has since been superceded by a new permit. However, the ruling makes clear that the regional board need not conduct CEQA review of the permit, which is more stringent than the 2001 version.

The court’s ruling is important to planners because the permit has implications for planning and development activities. The permit requires the cities and county to update their general plans to include “considerations and policies” regarding management of stormwater quality and quantity. The cities and county are also required to consider stormwater quality impacts as part of CEQA reviews, and to implement programs to control runoff from construction sites and new developments. The latter requirement has resulted in new development standards for projects larger than 5 acres.

Many cities and counties have battled the regional board over runoff issues since the board began cracking down on urban runoff, which is the largest source of water pollution in the state. The local governments contend the regional board’s mandates — contained in a watershed management plan for the Los Angeles Basin and the stormwater permit — would cost tens of billions of dollars to implement, making them prohibitively expensive for local governments. Courts, however, have consistently ruled for the Los Angeles board and, in similar controversies, for other regional boards and the State Water Resources Control Board (see , April 2006).

The permit at issue in the litigation at hand is known as the Los Angeles County MS4 permit, or formally “Municipal Storm Water and Urban Runoff within the County of Los Angeles, and the Incorporated Cities Therein, except the City of Long Beach.” The regional board issued the five-year permit in December 2001. The National Pollutant Discharge Elimination System, a part of the Clean Water Act, provides the legal background for such permits.

A coalition of 32 cities and the county sued, challenging the permit on many grounds. Los Angeles County Superior Court Judge Victoria Chaney ruled entirely for the regional board. With its amended decision, the Second District, Division Five, upheld the lower court.

The Second District dealt with many of the substantive challenges in an unpublished portion of its opinion. In the published part of the ruling, the court rejected the local governments’ argument that the regional board could not issue the permit because it lacks statewide jurisdiction, and that the state board had to be part of the litigation.

The court then considered the argument that because the permit implicates land use, housing, conservation and open space planning, the permit violated the separation of powers doctrine. Only cities and counties have the authority to decide on such matters, the argument went. The court approached the situation differently.

“Regional boards are explicitly granted the authority to issue orders for purposes of enforcing the federal Clean Water Act,” Presiding Justice Paul Turner wrote for the court. “Federal law requires that permits include controls to reduce pollutant discharge in areas of new development and significant redevelopment — the very area where regional board review occurs. So long as the regional board’s decisions carry out federal and state water quality mandates resulting from express legislative action as the challenged orders in this case in fact do, no separation of powers issue is present.”

As for CEQA, the court originally cited , (2006) 135 Cal.App4th 1392, for the proposition that limited environmental review of the permit was necessary because carrying out the permit requires significant construction and urban planning. But after granting the regional board’s request for a rehearing, the court decided that was different from this case because “the decision does not involve the issuance of a National Pollution Discharge Elimination System permit. Rather, it involves the development of a basin plan.”

Under CEQA, the resources secretary has the authority to require limited environmental review of some regulatory programs, according to the court. But the secretary has never imposed the environmental review requirement on the NPDES permit system, the court ruled.

The Case: , No. B184034, 2006 DJDAR 13567. Filed October 6, 2006. Modified November 6, 2006 at 2006 DJDAR 14670. The Lawyers: For the county: Howard Gest, Burhenn & Gest, (213) 688-7715. For some cities: Richard Montevideo, Rutan & Tucker (714) 641-5100. For the Regional Water Quality Control Board and state board: Richard Magasin, attorney general’s office, (213) 897-2604.