By Kate J. Hart
The California Building Industry Association (BIA) challenged several provisions of the State Water Board’s newly adopted general NPDES construction permit. While a majority of their claims were denied and most of the permit provisions were upheld, the court struck down the newly imposed numeric effluent limits set for pH and turbidity.
On September 2, 2009, the State Water Resources Control Board (Board) adopted a General Permit for Storm Water Discharges Associated with Construction and Land Disturbance Activities (permit) pursuant to the federal Clean Water Act and the state’s Porter-Cologne Water Quality Control Act. The BIA, among others, challenged the validity of permit on the grounds that: (1) the numeric effluent limits for pH and turbidity were unsupported by evidence in the record; (2) the permit’s 5-year, 24-hour Compliance Storm Event exemption from the numeric effluent limits for pH and turbidity was unsupported by evidence in the record; (3) the debris prohibition in the permit is not supported by evidence in the record; (4) the adoption of the permit violated the Porter-Cologne Act because the Board failed to consider the factors outlined in Section 13241 of the Act; (5) the receiving water and bioassessment monitoring requirements for Level 3 sites were unsupported by evidence in the record; (6) the permit’s requirement for post-construction monitoring on all sites exceeded the Board’s authority; and (7) the Board’s procedures were unfair and violated the Administrative Procedures Act and the Clean Water Act.
In California Building Industry Association v. State Water Resources Control Board, Judge Lloyd Connelly of the Sacramento Superior Court issued a ruling on the issues on December 2, 2011 as follows.
First, the trial court held that the Board’s adoption of the numeric effluent limit (NEL) for turbidity failed to comply with CWA requirements for the development of technology-based effluent limits (TBELs), and that as a result the turbidity NEL in the permit was invalid and unenforceable. The court’s rationale was that the Board’s adoption of the turbidity NEL was not supported by substantial evidence – the Board did not provide the performance data for the specific BMP measures and practices that were used to develop the turbidity NEL of 500 NTU. More specifically, the Board attempted to use data from three highway construction sites in the State of Washington (instead of references to sites in California). The court determined that none of the data established that available technologies are capable of controlling erosion and reducing sediment discharges from construction sites in California to a turbidity limit of 500 NTU or lower. In sum, the court held the Board must gather data on the performance of different technologies under various site conditions in California and derive a numeric limit for turbidity consistent with that data. Further, the court noted that until an attainable turbidity value is calculated, it is not possible for dischargers to select suitable technologies to comply with the turbidity limits, and no cost-benefit analysis can be conducted.
As with the turbidity NEL, the court also held that the pH NEL was invalid and unenforceable. The BIA suggested throughout the hearing processes before the Board and in its briefings that the pH NEL was not derived from best control treatment (BCT) performance data and as such, the technical aspects and costs-benefits of the BCT cannot be assessed as required by the CWA. The court agreed holding that without this assessment, the Board’s conclusion that the pH NEL does not increase the compliance requirements of the previous permit is not supported by substantial evidence. The court further found that the pH NEL did not comply with the CWA requirements for development of TBELs.
Second, with respect to the Compliance Storm Event exemption from the pH and turbidity NELs, the court determined that because the pH and turbidity NELs were invalid and unenforceable, this issue was moot.
Third, the court upheld the total discharge prohibition of “debris” (defined as litter, rubble, refuse, and remains of destroyed inorganic manmade waste) in storm water as consistent with the CWA, as well as feasible if good site management and best management practices (BMPs) are in place.
Fourth, on the issue of whether the Board violated the Porter-Cologne Act, the trial court disagreed with petitioners that the Board failed to properly comply with Water Code section 13241 in considering economic factors when setting the pH and turbidity NELs, the debris prohibition, and compliance storm event exemption, and the bioassessment requirements for Level 3 sites, as none of these requirements exceeded those of the CWA.
Fifth, as to the receiving water and bioassessment monitoring requirements for Level 3 risk sites where the storm water was being directly discharged to surface waters, the court held there was substantial evidence in the record to support the Board’s decisions.
Sixth, the court also upheld the general permit requirement that all construction sites, regardless of the level of risk assessed for the site, must maintain post-construction BMPs to reduce the amount of storm water flowing from the site to pre-project levels, as well as to ensure that storm water discharged from the project does not increase harmful pollutants. Additionally, the court held that evaluation of the post-construction requirements is not subject to a 13241 cost-benefit analysis because such requirement is not stricter than the CWA mandate.
Finally, with respect to whether the Board complied with the procedural requirements of the Administrative Procedures Act (APA) and the public participation requirements of the CWA incorporated into the APA under Government Code section 11353(b)(4), the court held that the APA procedures do not apply to the Board’s adoption of a general permit because the adoption of a general permit, like an individual permit, is a quasi-adjudicatory matter, not a quasi-legislative one. The court also held that while the public participation requirements of the CWA did apply to the adoption of the general permit, the Board complied with those requirements by inviting public comments, and holding various public meetings to consider public comments.
Ultimately, the court ordered the Board to set aside the numeric effluent limits for pH and turbidity established in the general construction permit for the Level 3 construction sites and to refrain from enforcing those limits until the Board adopts new limits based on specified BCT assessed in accordance with the factors contained in Section 304(b)(4)(B) of the CWA. If and when new pH and turbidity NELs are adopted, the Board must also determine the appropriate size of a compliance storm event exemption from the NELs. The remaining portions of the permit were deemed valid and enforceable.
While a majority of the permit provisions were upheld by the trial court, the key and most pertinent provisions – those relating to the newly established numeric technology-based effluent limits or NELs for pH and turbidity – were stricken. Whether the Board appeals or just proceeds to establish new numeric effluent limits for pH and turbidity remains to be seen. Either way, the BIA is no doubt celebrating this win. Additionally, industrial facilities will be watching this case closely as well, because the State Board is currently developing a new general permit for industrial activities that are also expected to rely on new specific numeric effluent limits.
Kate J. Hart is an attorney at Abbott & Kindermann, LLP and the Chair of the Central Valley Regional Water Quality Control Board. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.