Those of us working on water quality issues in California live with a strange paradox: in a drought-prone state with ever increasing demands for water, a huge number of dedicated public servants, and their advisors, pray that it will NOT rain. Why? Because rain can subject you to substantial penalties, and rain reminds you that you live in a no-win world. I am, of course, referring to the cumbersome regulatory quagmire that governs stormwater management by operators of municipal separate storm sewer systems (fondly referred to as “MS4s”, whose discharges are referred to as “municipal stormwater”).

Stormwater does carry pollution, because it runs over land that contributes sediment and particles of pollution. It also receives deposited pollution from the air, natural and man-caused, and it runs through channels that have conveniently flushed away wastes from people. The benefits of reducing stormwater pollution are well-recognized, but how to achieve an ideal level of control, or even to predict what will be found in stormwater with and without controls, is not. In this situation, the state and federal governments should pull together to craft solutions and then require that they be carried out by well-funded efforts of private citizens and public entities alike. Instead, stormwater pollution was first made a crime, subject to confusion and litigation, while policies and engineered solutions progressed more slowly.

Today, operators of MS4s, serving over 100,000 population, have permits under the National Pollutant Discharge Elimination System ("NPDES") provisions of the federal Clean Water Act; [2] and “Phase II” permitting is underway for “small MS4s," comprised of MS4s within designated urbanized areas or areas of high growth and those discharging to sensitive water bodies or significantly contributing to interconnected permitted MS4s. [3] The necessity of MS4 permitting was borne out of litigation. Based on the widely-held belief that stormwater was a form of nonpoint source pollution United Stares Environmental Protection Agency ("EPA") regulations originally defined stormwater as exempt from permitting under the NPDES, unless contaminated by industrial or commercial activity. [4] NPDES permits are required for discharges of pollutants from a “point source” into the navigable waters of the United Stares, and generally requires both technology-based controls and “water quality based effluent limits,” designed to achieve water quality standards in receiving streams. [5]

In 1977, the D.C. Court of Appeals invalidated EPA's regulation excluding stormwater from NPDES permit requirements. [6] Ten years later and after further controversy, Congress amended the Clean Water Act in 1987 to make specific provision for stormwater discharges. [7] New Section 402(p) described a schedule for the permitting of several categories of stormwater discharges, applying a unique standard to discharges from municipal separate stormwater systems (MS4s). Section 402(p) expressly required industrial stormwater discharges to comply with the requirements of Section 301, which defined the normal elements of an NPDES permit. [8] This has been interpreted to require covered industrial discharges (including construction site discharges) to strictly comply with stare water quality standards for the receiving water to which they discharge. [9]

In contrast, Congress chose not to require M54 discharges to achieve strict compliance with water quality standards. Instead, Clean Water Act Section 402(p)(3)(B)(iii) requires municipal storm-sewer discharges

. . . to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator . . . determines appropriate for the control of such pollutants. [10]

Although NPDES permitting for large and medium-sized MS4s has been in place since 1990, litigation is still attempting to define the meaning of Section 402(p)(3)(B)(iii), And just as smaller MS4s on the coast have been preparing to comply with the second phase of MS4 permitting, they have been faced with outright prohibitions on sending ANY stormwater to the Pacific Ocean. in sizable areas designated as State Water Quality Protection Areas under the Public Resources Code and as Areas of Special Biological Significance ("ASBS") under the California Ocean Plan issued by the State Water Resources Control Board (“State Board"). [11]

Thus, for example, in conjunction with covering the municipal members of the Monterey Regional Group [12] under the State Board's General Permit for Small MS4s, the Central Coast Regional Water Quality Control Board proposes to issue Cease and Desist Orders to the City of Pacific Grove and Monterey County prohibiting all discharges of stormwater to the. Pacific Grove Marine Gardens and Hopkins Marine Life Refuge ASBS within five years, unless they successfully achieve regulatory exceptions. [13]

Litigation has also struggled to interpret fundamental aspects of MS4 permitting under the Clean Water Act and the Porter Cologne Water Quality Control Act (“Porter Cologne"), the state law under which California implements the Clean Water Act and pursues its own water quality program. [14] Initially, the State Board endorsed an approach which did not require strict compliance with water quality standards, hut allowed the use of best management practices to achieve both technology-based and water quality-based standards. [15] The State Board directed the use in all MS4 permits of “safe harbor" language, dictating that development and implementation of the stormwater management programs described in the permit would constitute compliance with., receiving water limitations,” Strict compliance with water quality standards is a high stakes question. Not only are established numeric water quality standards for common metals in stormwater very low, often less than ten parts per billion, but controversial translations” of narrative standards have included, for example: the Central Valley Re ional Board citing a European Union r taste and odor guideline for ammonia (50 ppb) nearly one hundred times lower than EPA typically might use, and a public health goal for arsenic of 4 parts per trillion, more than 1000 times below the new federal drinking water standard of 10 per billion.

Ignoring the plain language of the CWA, EPA Region IX objected to the “safe harbor” language, asserting that it failed to require strict compliance with water qualify standards. under CWA section 301(b)(1)(C). [16] In June 1999, the State Board amended its prior order and directed that EPA's language without the safe harbor should be used in all future MS4 permits. [17] In addition, the mandated language provided for an iterative procedure to be followed to improve best management practices after an exceedance of a water quality standard is found.

Only three months later, the Ninth Circuit rejected EPA's reasoning. In the Defenders of Wildlife case, the Ninth Circuit rejected environmental group allegations that, not only is water quality standard compliance required, but it must be achieved through end-of-pipe numeric effluent limits. The Court held that, in fact, the Clean Water Act does nor require MS4s to strictly comply with water quality standards, and thus cannot require numeric effluent limits in their permits. [18] The requirements for a M54 Permit were exclusively contained in Section 402(p), which expressly did not incorporate the requirements of CWA section 301. [19]

The question remained regarding how much further a permitting agency may go to impose restrictions beyond the maximum extent practicable” standard. This has been explored in recent state court litigation in California . In Defenders of Wildlife , the Court observed that EPA had discretion to include more stringent measures than those meeting the maximum extent practicable standard, including compliance with water quality standards, if “necessary to control pollutants.” The Court reasoned that such discretion was afforded in the authorization in Section 402(p)(3)(B)(iii) of “such other provisions as the Administrator ... determines appropriate for the control of such pollutants." [20]

THE SAN DIEGO MS4 DECISIONS

Despite the Ninth Circuit's rejection of EPA's direction to the State Board, the State Board did not revisit the receiving water limit issue until November 2001, when it decided an appeal of the San Diego M54 permit by the Building Industry Association of San Diego County and Western States Petroleum Association. [21] In March of this year, this litigation concluded as the California Supreme Court declined to review the 2004 decision of Fourth Appellate District Court of Appeal. [22]

The State Board opinion in the San Diego permit case is as important as the Court of Appeals decision. For example, it is specifically cited in the general permit for Small MS4s as enunciating the proper interpretation of the receiving water limits in California M.54 permits, including those in Attachment 4 of the General Permit. [23] The M54 permit for San Diego, one of the most detailed, lengthy and stringent in the State, contained several provisions that prohibited discharges “which cause or contribute to exceedances” of receiving water quality standards. [24] The State Board concluded that the Regional Board had “appropriately required compliance with water quality standards.” At the same time, the State Board noted that the language of the permit “does not require. strict compliance with water quality standards.” Instead, the State Board interpreted the permit to “achieve compliance over time, through an iterative approach requiring improved [best management practices]." [25]

The Stare Board made no mention of the permit's most troubling sentence, which read: “Nothing in this section shall prevent the Regional Board. from enforcing any provision of this Order while the discharger prepares and implements the above report [which commences the iterative process after the M54 determines its discharge has contributed to a water quality standard exceedance].” This sentence was feared to put the permittees in jeopardy of penalty assessment for violation of the permit's prohibitions, even while they complied fully with the iterative best management plan improvement process. The State Board apparently did not feel this sentence had independent meaning.

The Court of Appeals strained to harmonize. its ruling with that of the State Board. The Court focused specifically on the savings clause that appeared-to reserve enforcement rights in the State during the iterative process. The Court labeled the iterative compliance provision an “enforcement provision.” It described the permit as providing the Regional Board certain enforcement rights outside of the iterative process, at its discretion. It then -offered the view that “it is not at all clear that a citizen would have standing to compel a municipality to comply with a water quality standard despite an ongoing iterative process, because citizen suits cannot force actions that would be discretionary on the part of the Regional Board." [26]

Those who relish litigation can take comfort in the fact that uncertainties remain as to how draconian the State's requirements may be. In the San Diego case, the Court carefully noted that it was not reaching the question of whether specific permit requirements were impossible or impractical, or inappropriately selected under Section 402(p). It found that the petitioners failed to make a factual case to adequately raise these issues below, finding the arguments premature. The case also did not address any questions under Porter Cologne, including implications of the California Supreme Court's July 200.5 confirmation that economics and the need for housing must be analyzed among multiple 6 factors required to be considered in water quality permitting, when the State imposes restrictions more stringent than those required under federal law. [27]

THE LA COUNTY UNFUNDED MANDATE CASE AND TRASH TMDL

In early 2002, multiple challenges were launched to the 2001 MS4 permit issued to Los Angeles County Flood Control District, the County of Los Angeles , and 83 incorporated cities in Los Angeles County . Although several cases have been settled, Los Angeles County and six cities (the " Arcadia petitioners”) have persisted. The Arcadia petitioners have enjoyed initial success in pursuing unfunded state mandate claims.

The State recently appealed a Superior Court writ of mandate directing that the Commission on State Mandates hear the Arcadia petitioners' four test claims seeking reimbursement of the costs of certain obligations imposed under the Los Angeles M54 permit, on the basis that they constitute unfunded state mandates under Article XIII B, section 6 of the California Constitution and Government Code section 17514. [28] The unfunded mandate claims included requests for reimbursement for the costs of performing inspections of industrial and commercial facilities, which may in many cases be subject to other state permits issued, more properly enforced by the State. [29]

If the trial court's decision is upheld, the case could have far reaching implications for water quality regulation in California . Government Code section 17514 describes the types of mandates for which claims may he filed, but excludes “any order, plan, requirement, rule or regulation” issued by the Stare Board or by any Regional Board pursuant to Porter Cologne. The Superior Court for the County of Los Angeles found this exclusion unconstitutional, and directed the Commission to hear the claims on the merits. [30] The State's appeal of this decision is currently pending before the Second Appellate District. [31]

Another stormwater case is on appeal following a Superior Court decision invalidating the Total Maximum Daily Load (“TMDL”) for trash adopted by the State for the Los Angeles River . [32] In line with the trend favoring total prohibitions over measured controls, the State found that “zero trash” was the total maximum daily load necessary to protect beneficial uses in the Los Angeles River . The State also found that the only source which would be allocated a load, and subjected to controls under the TMDL, would be MS4s. This was feared to portend an unachievable “zero trash”. limit in MS4 permits for the watershed, triggering tremendous public expense and exposure to penalties.

The Superior Court for San Diego County found the TMDL to have multiple legal flaws, including failure to comply with CEQA, failure to perform an adequate study to determine levels of trash that could be accommodated without impairing beneficial uses, improper extension of the TMDL to waters not listed on the State's 303(d) list, improper application of the TMDL to locations other than navigable waters of the United States (such as “watersheds”), failure to include measures to address sources of trash other than storm drains (wind, direct disposal), and failure to explain how the benefits of monitoring requirements justified their burden under Water Code section 13267. The future of the trash TMDL for the Los Angeles River remains in doubt pending resolution of the State's appeal of this decision. [33]

CONCLUSION

Fortunately, the unsung heroes of the saga, the M54 operators and stormwater control scientists, have ploughed ahead to install and share among themselves measures that actually accomplish reductions in stormwater pollution. [34] Some day, with a more coherent State policy and adequate funding, they may again welcome the rains.

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Katharine Wagner is a partner at Downey Brand LLP in Sacramento, where she chairs the firm's Environmental Law Practice Group. She advises public entity, industrial, commercial, and agricultural clients environmental permitting and compliance, with an emphasis in water quality and toxics regulation, and on allocating environmental risks in transactions.

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[1] Creedance Clearwater Revival, 1970 (John Forgerty).

[2] 33 U.S.C. §§ 1251 et seq. (hereafter referred to as the “Clean Water Act”).

[3] 33 U.S.C. § 1342(p), 40 C.F.R. §§ 122.26 (d), 122.30 et seq., implemented in California through individual permits for large and medium-sized MS4s and pursuant to a general permit for Small MS4s , Stare Water Resources Control Board (“State Board”) Order No. WQ 2003.0005 (“General Permit for Small MS4s”).

[4] See 40 C.F.R. § 125.4 (1975).

[5] See 33 U.S.C. §§ 1342(a)(1), 1362(12)(A).

[6] See Natural Resources Defense Council, Inc. v. Castle , .568 F.2d 1369, 1377 (D.C. Cit. 1977).

[7] 33 U.S.C. § l342(p).

[8] See 33 U.S.C. § 1342(p)(3)(A) (“Permits for discharges associated with industrial activity shall meet all applicable provisions of this section and section 1311 of this title.”).

[9] See Defenders of the Wildlife v. Browner , 191 F.3d 1159, 1165 (9th Cit. 1999) (hereafter referred to as “ Defenders of Wildlife ”) (quoting 33 U.S.C. § 1311(b)(1)(C)).

[10] 33 U.S.C. § 1342(p)(3)(B)(iii).

[11] Public Resources Code § 36700(0 (in a. state water quality protection area, waste discharges shall be prohibited or limited by the imposition of special conditions in accordance with the Porter-Cologne Water Quality Control Act. . . and implementing regulations, including, but not limited to, the California Ocean Plan . . .); California Ocean Plan (2001) § III.E.1 (“Waste shall not be discharged to areas designated as being of special biological significance. Dischargers shall be located a sufficient distance from such designated areas to assure maintenance of natural water quality conditions in these areas.”)

[12] Cities of Monterey, Del Rey Oaks, Sand City, Seaside, Pacific Grove, Marina, and the County of Monterey (Carme-by-the-Seal is pursuing a waiver from permit coverage; Pebble Beach Company also rescinded participation in the Monterey Regional Group permit and is seeking to avoid permitting as a non-municipal entity).

[13] Cease and Desist Orders were also proposed to. cover Carmel and Pebble Beach Co., but their status is uncertain as those entities seek to avoid NPDES permit coverage and seek a Stare Board interpretation or amendment of the California Ocean Plan that would conform it to the Public Resources Code's focus on discharges that create “undesirable alterations in natural water quality.” Letter dared April 5, 2005, from K. Richardson to State Board “Petition and Comments on the Proposed California Ocea Plan Amendments for April 6, 2005 Public Hearing hem Number 1.3.”

[14] California Water Code §§ 13000 et seq. (“Porter Cologne”). EPA's NPDES permitting authority has been delegated to the State Water Resources Control Board, and thence to the nine California Regional Water Quality Control Boards (“Regional Boards”). See Water Code Section 13373 et seq.

[15] See On Own Motion Review of the Petition of Environmental Health Coalition , State Board Order No. WQ 98.01.

[16] See March 17, 1998 letter from EPA to the Stare Board criticizing State Board Order No. 98.01, citing 33 U.S.C. §131 1(b)(1)(C).

[17] See Own Motion Review of the Petition of Environmental Health Coalition , State Board Order No. WQ 99-05.

[18] See Defenders of Wildlife , 191 F.3d at 1165-1166 (9th Cir. 1999).

[19] On this basis, the Ninth Circuit upheld permits issued by EPA to the Cities of Tempe, Tucson , Mesa and Phoenix and Pima County , Arizona , that appeared not to require strict compliance with water quality standards.

[20] Id. at 1166.

[21] Review of the Petitions of Building Industry of San Diego County and Western Stares Petroleum Association , State Board Order No. WQ 2001-15.

[22] Building Industry of San Diego County et al. v. SWRCB et al . (2004) 124 Cal.App.4th 866, petition for review den. , 2005 Cal. LEXIS 3489 (Mar. 30, 2005).

[23] See General Permit for Small MS4s, Finding 19.

[24] Building Industry of San Diego County et al. v. SWRCB et al. , 124 Cal.App.4th at 876.

[25] Compare p. 16 (conclusion) with p. 7 (rationale) State Board Order No. WQ 2001-15 at 16 (conclusion).

[26] Id . at 12, citing 33 U.S.C. § 1365(a)(1((2).
Despite the inherent and unnecessary confusion caused by these provisions, the decisions of the Court of Appeals and the State Board while a M54 operation is proceeding diligently through the process of reporting water quality standard problems and working with the Regional Board to improve best management practices in the prescribed fashion, it should not be subject to enforcement action, except in unusual circumstances at the discretion of the Regional Board. This provides a little, tentative comfort, at least until the agency decides to take sudden initiative against the permittee.

[27] City of Burbank v. State Water Resources Control Board , 35 Cal.4th 613, rehearing den ., 2005 Cal. LEXIS 7185 ( Cal. , June 29, 2005).

[28] County of Los Angeles et al. v. Commission on State Mandates et al. (Case No. B 183981) (notice of appeal filed June 27, 2005, 2d App. Dist.); County of Los Angeles et al. v. State of California et al. (Super. Court Consol. Case Nos. B5089769 and BS089785), Ruling on Cross Motions for Judgment on the Pleadings filed May 9, 2005; Judgment filed May 24, 2005.

[29] Test Claim Nos. 03-TC-04, 03-TC-19, 03-TC-20 and 03-TC-21.

[30] County of Los Angeles et al. v. State of California et al. (Consol. Case Nos. BS089769 and BS089785), Ruling on Cross Motions for Judgment on the Pleadings filed May 9, 200.5; Judgment filed May 24, 2005.

[31] County of Los Angeles et al. v. Commission on State Mandates et al. (Case No. B 183981) (notice of appeal filed June 27, 2005). The municipalities also appealed the lower court's dismissal of other causes of action, including the denial of their request for writ of mandate that the Commission find the claims reimbursable.

[32] Under the Clean Water Act, total maximum daily loads (“TMDLs”) must be established for listed pollutants and water segments at a level necessary to implement the applicable water quality standard. 3.3 U.S.C. § 1313(d)(l)(C).

[33] Cities of Arcadia , et al. v. State Water Resources Control. Board , (4th Appellate District Case No. D043877, on appeal of San Diego County Superior Court Civ. Case No. GIC 803631). Note also that in late 2003 a settlement agreement was reached in parallel but separate appeals of the trash TMDL, between the City of Los Angeles and County of Los Angeles the Los Angeles Regional Board, Santa Monica Baykeeper, Natural Resources Defense Council and Heal the Bay. The settlement focused on establishment of “safeharbor” language which would revise arid clarify the obligations of MS4 operators under waste load allocations to implement the TMDL based M54 operators meeting specific performance requirements on a designated schedule.

[34] While federal and State governments have provided scant advance guidance or funding, an example of productive initiatives by stormwater managers and experts can be found, for example, in the work of the nonprofit California Stormwater Quality Association.