December 17, 2008
On November 26, the Orange County Superior Court ruled that Water Quality Standards for storm water promulgated by the Los Angeles Regional Water Quality Control Board (“Regional Board”) in its Los Angeles Region Basin Plan were invalid under state law. Cities of Arcadia v. State Water Resources Control Board, No. 06CC02974, (Cal. Super. filed Feb. 9, 2006). The ruling is the latest decision in what became a contentious legal battle over the appropriate standards during the course of the past two years. In so ruling, the court effectively affirmed earlier decisions from March and July of this year. However, in this latest decision, the court also revoked portions of its earlier decisions, allowing current regulations to remain in effect until the Regional Board is able to conduct the court ordered review of Water Quality Standards.
The Cities of Arcadia litigation arose in February of 2006 when Petitioners, a coalition of 22 southern California cities along with construction industry groups, brought suit against Respondents, the State Water Resources Control Board (“State Board”) and Regional Board, challenging numeric Water Quality Standards as they related to storm water (defined by the court to include “urban runoff” under 40 C.F.R. § 122.26(b)(13) (invalidated on other grounds)). Additionally, in April of 2008, a group of environmental impact organizations including the National Resources Defense Council, Heal the Bay, and Santa Monica Baykeeper intervened in the case on the side of Respondents, arguing that straying from the more stringent standards would have detrimental environmental consequences.
Petitioners primarily contended that the Regional Board ran afoul of state law by failing to conduct a reasonableness review of numeric storm water standards as mandated by California Water Code §§ 13000 and 13241. The court issued its initial ruling in favor of Petitioners on July 2, 2008 (later vacated), directing that the storm water regulations be revised.
Judge Thierry Patrick Colaw’s November 26 writ of mandate requires the Regional Board to review and revise its current numeric standards governing storm water in light of the requirements of Water Code sections 13241 and 13000. Under these Water Code sections the Regional Board must take into account a number of factors in determining water quality control standards. These include, but are not limited to “past, present, and probable future beneficial uses of water,” “economic considerations,” and “water quality conditions that could reasonably be achieved.” See Cal. Water Code § 13241(a)-(f) (emphasis added). Additionally, the court ruled that it was “contrary to law to base Water Quality Standards on ‘potential’ beneficial uses,” since to do so conflicts with the requirement to consider “probable future beneficial uses” contained in Water Code section 13241(a).
The court also ordered the 2004 Triennial Review of the standards be reopened to consider such revisions or, alternatively, that the revisions be considered at the next scheduled triennial review. Significantly, the ruling allows that before such time that revisions could be made, the Regional Board could enforce existing standards, thus leaving Petitioners and countless others subject to regulations deemed invalid under state law.
The time for the State and Regional Boards to appeal has not yet run. Regardless of whether either party decides to appeal, this dispute may be far from settled. It remains to be seen how and to what extent the Respondents’ review of the storm water regulations will result in revised standards because the court mandated only that review of the standards must be made with the factors set forth in § 13241 in mind.
Additionally, in the interim it appears that existing regulations will continue to be enforced by the State and Regional Boards. Although the State Board has shown an abundance of caution in responding to prior rulings (even temporarily suspending the approval of any permits possibly implicated by the court’s July 2 order), after the July 2 order was vacated, the State Board stated that “full implementation of the State Water Board’s pre-existing storm water regulatory program” can resume. The State Board has issued no further guidance preventing such implementation going forward. If this (or any) court were to enforce existing numeric storm water limits it could lead to the initiation of new litigation. Thus, while a writ has been issued in the present case, this ruling may have wider implications in the coming months.
Gibson, Dunn & Crutcher has particular expertise in environmental litigation, including nuisance actions, and also handles a range of other environmental and counseling matters nationwide. To learn more about the firm’s environmental practice, please contact the Gibson Dunn attorney with whom you work,
Patrick W. Dennis (213-229-7567, [email protected]) and
Jeffrey D. Dintzer (213-229-7860, [email protected]) in Los Angeles,
Alan N. Bick (949-451-4211, [email protected]) in Orange County, or
Peter E. Seley (202-887-3689, [email protected]) in Washington, D.C.
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