The opinion discussed in this article was modified on November 6, 2006. Please click here to read about the modified opinion. By Janell M. Bogue Recently, the Second Appellate District issued an opinion which may change how the nine Regional Water Quality Control Boards (“Boards” or “Regional Boards”) issue National Pollution Discharge Elimination System (“NPDES”) permits and comply with California Environmental Quality Act (“CEQA”). The case is County of Los Angeles v. California State Water Resources Control Board (2006) 143 Cal.App.4th 985. The plaintiffs in the case included 32 cities in Southern California, the Los Angeles County Flood Control District, the Building Industry Legal Defense Fund, and the Construction Industry Coalition on Water Quality. They challenged the legality of the Los Angeles Regional Board’s issuance of a NPDES permit entitled “Municipal Storm Water and Urban Runoff Discharges within the County of Los Angeles and the Incorporated Cities Therein, Except the City of Long Beach.” This permit made findings that the County of Los Angeles and the named cities (“County and Cities”) contributed to the release of pollutants from storm drain systems. These pollutants included cyanide, copper, lead, and mercury, and various nutrients. Under the permit, the County and Cities were prohibited from allowing non-storm water discharges into their stormwater sewer systems. The Regional Board’s executive officer was given the authority to modify the permit as needed and impose additional conditions after considering anti-degradation policies and the total maximum daily load that a water body can receive without exceeding applicable water quality standards. The County and Cities were also required to implement a storm water quality management program and use best management practices to reduce the level of pollutants in storm water. They were also required to consider storm water in their CEQA assessments and to update their general plans to include “considerations and policies of watershed and storm water quality and quantity management.” Finally, the County and Cities were required to implement programs to control runoff from construction sites. There were special provisions applicable to construction sites larger than one acre. Plaintiffs challenged the permit and first claimed that the Regional Board did not have the jurisdiction to issue the permit because the Board does not have “statewide jurisdiction.” They pointed to 40 CFR 123.1(g)(1), which says that NPDES authority may be shared by state agencies, but each agency must have statewide jurisdiction over a class of discharges. The plaintiffs argued that because the Regional Board’s scope is limited to its own region by Water Code section 13225 and 13220(d), that each Board is not a “statewide agency” and the permit is void. The court disagreed. The court pointed out that the federal Environmental Protection Agency (“EPA”) vested the authority to issue NPDES permits in the State Water Resources Control Board (“State Board”) in 1989. (See 54 Fed. Reg. 40664, 40665.) The State Board is broken out into the nine Regional Boards. Those nine Boards are authorized by state law to issue NPDES permits. (Water Code, § 13374.) The court said, “The fact that the [S]tate [B]oard is organized into nine regional boards is legally irrelevant.” It held that the Regional Boards have statewide jurisdiction for the purposes of issuing NPDES permits. The plaintiffs also argued that the permit’s requirements of general plan amendment and CEQA consideration violated the separation of powers doctrine. The court again disagreed. It said that the general plan and CEQA requirements are limited state law. The Clean Water Act, as federal law, supersedes all conflicting state and local law. Regional Boards are expressly granted the authority to issue orders for the purpose of water quality, and so long as the Regional Board’s actions result from that express power, there is no separation of powers issue. Finally, the plaintiffs claimed that the permit process violated CEQA. They argued that Water Code section 13389 exempts NPDES permits from Chapter 3 of CEQA, but not Chapters 1 or 2.6. Those chapters require some environmental assessment, though not a full EIR. The court agreed with the plaintiffs on this point. It pointed to a similar analysis done by the Fourth Appellate District in City of Arcadia v. California State Water Resources Control Board (2006) 135 Cal.App.4th 1392, 1420-30, which said that basin plans that may have a significant impact on the environment are subject to limited CEQA review. The court noted that there is no requirement for a full EIR (as would be required for a project under Chapter 3 of CEQA). Though the Regional Board argued that the NPDES permit is not subject to CEQA review at all, the court said, “The Legislature has clearly indicated in Water Code section 13389 that only Chapter 3 of the California Environmental Quality Act does not apply to National Pollutant Discharge Elimination System permits.” The Regional Board argued that federal law excludes NPDES permits from CEQA, but the court disagreed. It found none of the forms of federal preemption. There are three ways that a state statute can be preempted by federal law. First, Congress can explicitly state that the state law is preempted in the statutory language. Second, the state law can regulate in a field that Congress intended to totally occupy. Finally, the state law can act as a barrier to the federal law. In all of these cases, the state law will be preempted by the federal one. Here, the court found none of these situations and held that CEQA was not preempted by the Clean Water Act. The court ordered the trial court to issue a writ of administrative mandate to direct the Regional Board to set aside the permit and conduct limited CEQA review pursuant to Chapters 1 and 2.6. How does this case change the NPDES permit process? Any permits issued after this case must undergo the proscribed CEQA review of Chapters 1 and 2.6. This will undoubtedly extend the time and expense of the permits. With the existing backlog of NPDES permits, this is yet another roadblock to achieving water quality in California. Janell Bogue is a law clerk with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor 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.