City of Arcadia v. State Board
Decision Date | 26 January 2006 |
Docket Number | No. D043877.,D043877. |
Citation | 38 Cal.Rptr.3d 373,135 Cal.App.4th 1392 |
Court | California Court of Appeals Court of Appeals |
Parties | CITY OF ARCADIA et al., Plaintiffs and Appellants, v. STATE WATER RESOURCES CONTROL BOARD et al., Defendants and Appellants. |
Gregory J. Newmark, Deputy Attorneys General, for Defendants and Appellants.
Law Office of Michael R. Lozeau, Michael R. Lozeau, San Francisco; and Dana P. Palmer for Santa Monica Baykeeper, Inc., Heal the Bay, Inc., and Natural Resources Defense Council, Inc., as Amici Curiae on behalf of Defendants and Appellants.
This case concerns the serious environmental problem of litter discharged from municipal storm drains into the Los Angeles River, and efforts of the California Regional Water Quality Control Board, Los Angeles Region (Regional Board) and the State Water Resources Control Board (State Board)1 to ameliorate the problem through the adoption and approval of a planning document setting a target of zero trash discharge within a multi-year implementation period.
The Water Boards appeal a judgment partially granting a petition for writ of mandate brought by the City of Arcadia and 21 other cities (Cities),2 who agree trash pollution must be remedied but oppose the target of zero trash as unattainable and inordinately expensive. The Water Boards challenge the court's findings that an assimilative capacity study is a required element of its action; a cost/benefit analysis and consideration of economic factors are required under state law and are not met; the zero trash target is inapplicable to the Los Angeles River Estuary (Estuary) because it does not appear on the state's list of impaired waters; and, the Water Boards failed to comply with the California Environmental Quality Act (CEQA) by not preparing an Environmental Impact report (EIR) or its functional equivalent.
The Water Boards also contend the court erred by granting the Cities declaratory relief on their claim the Trash total maximum daily load (TMDL) does not apply to "nonwaters," meaning areas that do not drain into navigable waters such as the Los Angeles River or tributaries, as the parties agreed during this proceeding that the Trash TMDL applies only to navigable waters.
The Cities also appeal, contending the trial court erred by not invalidating the Trash TMDL on the additional grounds the Water Boards failed to provide for deemed compliance with the target of zero trash through certain methods; failed to implement load allocations for nonpoint sources of trash pollution; failed to adhere to the data collection and analysis required by federal and state law; relied on nonexistent, illegal and irrational uses to be made of the Los Angeles River; and, violated the Administrative Procedures Act (APA).
We conclude the Cities' appeal lacks merit. As to the Water Boards' appeal, we conclude the court properly invalidated the planning document on the ground of noncompliance with CEQA, and we affirm the judgment insofar as it is based on that ground. We reverse the judgment to the extent it is based on other grounds. Further, we hold the court erred by granting declaratory relief on the nonwaters issue as there was no controversy when the court ruled.
The "quality of our nation's waters is governed by a `complex statutory and regulatory scheme . . . that implicates both federal and state administrative responsibilities.'" (City of Burbank v. State Water Resources Control Bd. (2005) 35 Cal.4th 613, 619, 26 Cal.Rptr.3d 304, 108 P.3d 862 (City of Burbank).) An overview of applicable law is required to place the facts here in context.
In 1972 Congress enacted amendments to the Federal Water Pollution Control Act (Pub.L. No. 92-500 (Oct. 18, 1972) 86 Stat. 816; 33 U.S.C. § 1251 et seq.), which, as amended in 1977, is commonly known as the Clean Water Act. (City of Burbank, supra, 35 Cal.4th at pp. 619-620, 26 Cal.Rptr.3d 304, 108 P.3d 862.) Its stated goal is "to restore and maintain the chemical, physical and biological integrity of the Nation's waters" by eliminating the discharge of pollutants into navigable waters. (33 U.S.C. § 1251(a).)
The Clean Water Act places "primary reliance for developing water quality standards on the states." (Scott v. Hammond (7th Cir.1984) 741 F.2d 992, 994.) It requires each state to develop such standards and review them at least once every three years for required modifications. (33 U.S.C. § 1313(a), (c)(1).) The standards must include designated uses such as recreation, navigation or the propagation of fish, shellfish and wildlife; water quality criteria sufficient to protect the designated uses, and an anti-degradation policy. (40 C.F.R. §§ 131.6, 131.10-131.12 (2003).) The water quality criteria "can be expressed in narrative form or in a numeric form, e.g., specific pollutant concentrations." (Florida Public Interest Research Group Citizen Lobby, Inc. v. EPA (11th Cir.2004) 386 F.3d 1070, 1073.) (City of Burbank, supra, 35 Cal.4th at p. 622, fn. 4, 26 Cal.Rptr.3d 304, 108 P.3d 862.)
The Clean Water Act focuses on two possible sources of pollution: point sources and nonpoint sources. "Point source" means "any discernable, confined and discrete conveyance" such as a pipe, ditch, channel, tunnel, or conduit. (33 U.S.C. § 1362(14).) The Clean Water Act does not define nonpoint source pollution, but it has been described as "`"nothing more [than] a [water] pollution problem not involving a discharge from a point source."'" (Defenders of Wildlife v. EPA (10th Cir.2005) 415 F.3d 1121, 1123-1124.)3
(San Francisco BayKeeper v. Whitman (2002) 297 F.3d 877, 880; 33 U.S.C. § 1311(b)(1)(A).) "" (Pronsolino v. Marcus (N.D.Cal.2000) 91 F.Supp.2d 1337, 1348, citing 33 U.S.C. § 1288; see also 33 U.S.C. § 1329.)
(San Francisco BayKeeper v. Whitman, supra, 297 F.3d at p. 880; 33 U.S.C. § 1313(d)(1)(A); 40 C.F.R. § 130.7(b) (2003).) "This list of substandard waters is known as the `303(d) list' (section 303 of the Clean Water Act having been codified as [title 33 United States Code] section 1313)." (City of Arcadia v. EPA (9th Cir.2005) 411 F.3d 1103, 1105 (City of Arcadia II).)
"A TMDL defines the specified maximum amount of a pollutant which can be discharged or `loaded' into the waters at issue from all combined sources." (Dioxin/Organochlorine Center v. Clarke (9th Cir.1995) 57 F.3d 1517, 1520.) (Communities for a Better Environment v. State Water Resources Control Bd. (2003) 109 Cal.App.4th 1089, 1095-1096, 1 Cal.Rptr.3d 76; Dioxin/Organochlorine Center v. Clarke, at p. 1520.)4 A TMDL requires a "margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality." (33 U.S.C. § 1313(d)(1)(C).)
The EPA may allow states to adopt and administer NPDES permit programs (Pronsolino v. Marcus, supra, 91 F.Supp.2d at p. 1347, fn. 10), and it has authorized California to administer such a program. (54 Fed.Reg. 40664 (Oct. 3, 1989).)
California implements the Clean Water Act through the Porter-Cologne Act (Wat.Code, § 13000 et seq.), which was promulgated in 1969. Under the Porter-Cologne Act, nine regional boards regulate the quality of waters within their regions under the purview of the State Board. (Wat.Code, §§ 13000, 13100, 13200, 13241, 13242.)
Regional boards must formulate and adopt...
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