City of Arcadia v. State Board

Decision Date26 January 2006
Docket NumberNo. D043877.,D043877.
Citation38 Cal.Rptr.3d 373,135 Cal.App.4th 1392
CourtCalifornia Court of Appeals Court of Appeals
PartiesCITY 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.

I Statutory and Regulatory Scheme

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.

A Federal Law

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.) "Narrative criteria are broad statements of desirable water quality goals in a water quality plan. For example, `no toxic pollutants in toxic amounts' would be a narrative description." (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

"Congress dealt with the problem of point source pollution using the National Pollution Discharge Elimination System [NPDES] permit process. Under this approach, compliance rests on technology-based controls that limit the discharge of pollution from any point source into certain waters unless that discharge complies with the [Clean Water] Act's specific requirements." (San Francisco BayKeeper v. Whitman (2002) 297 F.3d 877, 880; 33 U.S.C. § 1311(b)(1)(A).) "`Nonpoint sources, because of their very nature, are not regulated under the NPDES [program]. Instead, Congress addressed nonpoint sources of pollution in a separate portion of the [Clean Water] Act which encourages states to develop areawide waste treatment management plans.'" (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.)

"When the NPDES system fails to adequately clean up certain rivers, streams or smaller water segments, the [Clean Water] Act requires use of a water-quality based approach. States are required to identify such waters . . . [and] rank [them] in order of priority, and based on that ranking, calculate levels of permissible pollution called `total maximum daily loads' or `TMDLs.'" (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.) "A TMDL must be `established at a level necessary to implement the applicable water quality standards . . . .' [Citation.] A TMDL assigns a waste load allocation . . . to each point source, which is that portion of the TMDL's total pollutant load, which is allocated to a point source for which an NPDES permit is required. [Citation.] Once a TMDL is developed, effluent limitations in NPDES permits must be consistent with the [waste load allocations] in the TMDL." (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).)

B State Law

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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