On a dry day, some 100 million gallons of water flows through LA County’s complex system of catch basins, concrete rivers and underground pipes. When it rains, up to 10 billion gallons of urban runoff flow through the system, picking up pollutants such as arsenic, lead, toxic pesticides, viruses and bacteria along the way. Now a judge must consider whether Southern California cities – Culver City among them – can keep dumping billions of gallons of contaminated stormwater as long as they develop plans to limit pollution.
Cities can obtain discharge permits under the Clean Water Act from regional officials, allowing them to dump government-established levels of polluted stormwater into water systems. But environmental groups sued state and regional water officials in Los Angeles Superior Court in July 2015, claiming the 2012 permit endangers the environment and public health by allowing cities to dump polluted stormwater with near impunity.
As approved by the State Water Resources Control Board and the LA office of the California Regional Water Quality Control Board, the 2012 permit allows cities to bypass stormwater pollution limits as long as they draft management plans to “eventually” meet those pollution limits, the environmentalists claim in their lawsuit.
Additionally, they say the length of the permitting process – 11 years, twice the time allowed by law – resulted in numerous dumping violations by cities, while the resulting permit was less stringent than previous versions. This means the permit violates the Clean Water Act’s anti-backsliding and anti-degradation provisions, the groups claim.
But Los Angeles Superior Court Judge Amy D. Hogue ruled the anti-backsliding provision does not apply to permits issued to municipalities for stormwater discharge, while the new permit created “incentives for municipalities to construct infrastructure improvements designed to retain polluted stormwater in situ rather than piping it via sewer systems to the region’s various water bodies.”
In a 23-page unpublished opinion issued Monday, December 24, 2018 the Second Appellate District agreed with Hogue’s assessment as to the anti-backsliding provision. The three-judge panel noted Congress chose to require compliance for industrial stormwater discharges but did not extend that to municipal discharges.
However, the panel found Hogue applied the wrong standards of review as to whether the approved permit violates the anti-degradation provision of the Clean Water Act.
“Although the trial court set forth in its ruling the correct independent judgment standard of review, it nevertheless accepted the state board’s factual ‘findings as sufficient to justify any degradation that may occur as a result of the 2012 permit’s regulatory scheme,’” Second Appellate District Justice Dorothy Kim wrote for the panel, noting Hogue also deferred to the regional board’s findings.
“Taken together, these statements demonstrate that the trial court, rather than undertaking the required independent standard of review, reviewed the state water board’s findings for substantial evidence. Our conclusion is supported by the fact that the trial court ‘articulated no independent finding regarding’ the state board’s justification for degradation,” Kim wrote.
“Accordingly, we reverse the trial court’s anti-degradation ruling and remand the matter to the trial court with directions to reconsider, under the independent judgment standard of review, plaintiffs’ assertion in their petition for writ of administrative mandamus that the 2012 permit violates the federal and state anti-degradation policies.”
Acting Presiding Justice Lamar Baker and LA County Superior Court Judge Lisa Jaskol, sitting by designation, rounded out the panel.
Jaclyn Prange, senior attorney at the Natural Resources Defense Council, praised the panel’s decision to revive the anti-degradation portion of the case.
“We are pleased that the Court of Appeal agreed with Los Angeles Waterkeeper and NRDC that the case needs to be sent back to the trial court for a new hearing on whether the permit violates the Clean Water Act’s anti-degradation rule, which generally prohibits water quality from getting worse over time,” Prange said in an email.
As for the anti-backsliding rule, Prange said, “The court disagreed that the permit violated another section of the act, the anti-backsliding rule, and we are still considering our options as to that part of the ruling.”
Renee Purdy with the California Water Boards, Los Angeles Region, said the state agencies are optimistic the permit will eventually be approved by the court.
“The boards are pleased the court recognized that this innovation does not violate the federal Clean Water Act’s anti-backsliding provisions. And while we are disappointed the court of appeal asked the trial court to reassess the permit’s compliance with anti-degradation requirements, we are confident the permit will ultimately be upheld,” Purdy said in an email.
Martin Macias, Jr.
While this ruling focuses on the LA River, it applies to Ballona Creek Watershed, too, which is a poster child for Storm Drains during both dry weather and wet weather.