By Janell M. Bogue
In a victory for the Regional Water Quality Control Boards and State Water Resources Control Board, the Second Appellate District revised its opinion in County of Los Angeles v. California State Water Resources Board (2006) 2006 Cal.App.LEXIS 1744 on November 6, 2006. Though several parties submitted petitions for rehearing, the court modified its previous October 5, 2006 opinion on its own and denied all the rehearing petitions. Click here to read about the court’s previous, unmodified opinion. The modification deals with the most significant issue in the original opinion, namely the requirement that NPDES permits be subjected to limited CEQA review. In its modification, the court affirmed the opinion of the Superior Court and held that NPDES permits are not subject to CEQA review. The court pointed out that Water Code section 13389 was enacted on December 19, 1972; only 14 days after Chapter 2.6 of CEQA was adopted. The court said that it was not persuaded that the Legislature, in enacting section 13389, intended to subject the permits to review under Chapter 2.6. The court stated:
…[D]efendants cite no evidence that the Legislature ever intended to: impose a duty on regional boards to prepare environmental impact reports; require regional boards to engage in any other form of environmental review specified in the California Environmental Quality Act; or to otherwise modify Water Code section 13389.
The court, in the modified opinion, also addressed the defendants’ reliance on City of Arcadia v. State Water Resources Control Board (2006) 135 Cal.App.4th 1392 for the proposition that basin plans are also subject to limited CEQA review. The court distinguished City of Arcadia because the focus there was on a basin plan update, not the issuance of an NPDES permit. The court agreed that basin plans are subject to CEQA review pursuant to Public Resources Code section 21080.5, which says:
(a) Except as provided in Section 21158.1, when the regulatory program of a state agency requires a plan or other written documentation containing environmental information and complying with paragraph (3) of subdivision (d) to be submitted in support of an activity listed in subdivision (b), the plan or other written documentation may be submitted in lieu of the environmental impact report required by this division if the Secretary of the Resources Agency has certified the regulatory program pursuant to this section.
The Secretary of the Resources Agency, in 14 CCR 15251, has certified that basin plans require limited environmental review. But the Secretary has not identified NPDES permits as a certified program under 21080.5. Thus, neither the City of Arcadia case nor this case requires CEQA review for the issuance of NPDES permits.
The modification of this opinion is important because it means that the Regional Boards can return to their normal permit approval processes and do not have to perform CEQA analysis on NPDES permits before their issuance.
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.