County of Los Angeles v. Water Resources

Decision Date05 October 2006
Docket NumberNo. B184034.,B184034.
CourtCalifornia Court of Appeals Court of Appeals
PartiesCOUNTY OF LOS ANGELES et al. Plaintiffs and Appellants, v. CALIFORNIA STATE WATER RESOURCES CONTROL BOARD et al., Defendants and Respondents.

Raymond G. Fortner, Jr., Los Angeles County Counsel, Judith A. Fries, Principal Deputy County Counsel, and Burhenn & Gest, Howard Gest, Los Angeles, and David W. Burhenn for Plaintiffs and Appellants County of Los Angeles and Los Angeles County Flood Control District.

Rutan & Tucker, Richard Montevideo, and Peter Howell, Costa Mesa, for Plaintiffs and Appellants The Cities of Arcadia et al.

Burke, Williams & Sorensen, Leland C. Dolley, Rufus C. Young, Los Angeles, and Amy E. Morgan, Riverside, for Plaintiffs and Appellants City of Industry, City of Santa Clarita, and City of Torrance.

Richards, Watson & Gershon, Lisa Bond, Matthew F. Cohen, Los Angeles, and John J. Harris, Victorville, for Plaintiffs and Appellants The Cities of Monrovia, Norwalk, Rancho Palos Verdes, Artesia, Beverly Hills, Carson, La Mirada, and Westlake Village.

Bill Lockyer, Attorney General, Tom Greene, Chief Assistant Attorney General, Mary E. Hackenbracht, Assistant Attorney General, Richard Magasin, Helen G. Arens, and Jennifer Faye Novak, Deputy Attorneys General, for Defendants and Respondents California Regional Water Quality Control Board, Los Angeles Region and State Water Resources Control Board.

David Saul Beckman, Los Angeles, Anjali I. Jaiswal, and Michelle S. Mehta, for Defendants and Respondents Natural Resources Defense Council, Santa Monica Baykeeper, and Heal the Bay.

TURNER, P.J.

I. INTRODUCTION

Plaintiffs, 32 cities,1 the County of Los Angeles (the county), the Los Angeles County Flood Control District (the flood control district), the Building Industry Legal Defense Fund, and the Construction Industry Coalition on Water Quality, appeal from a March 24, 2005 judgment in favor of defendants, California Regional Water Quality Control Board, Los Angeles Region (the regional board) and the State Water Resources Control Board (the state board) and intervenors, Natural Resources Defense Council, Inc., Santa Monica Baykeeper, and Heal the Bay. Plaintiffs challenge the legality of the regional board's issuance of Order No. 01-182 adopting the National Pollutant Discharge Elimination System Permit No. CAS004001 (the permit) which is 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." The December 13, 2001 permit was issued to the county, the flood control district, and 84 incorporated cities in Los Angeles County.

We affirm the judgment in its entirety.

II. THE PERMIT
A. Overview

The permit was issued pursuant to the obligations imposed by the Clean Water Act which will be discussed in greater detail later in this opinion. The Clean Water Act was originally entitled the Federal Water Pollution Control Act. (62 Stat. 1115; 1948 U.S.Code Cong. & Admin. News at pp. 2215-2220.) For purposes of clarity and consistency, the federal applicable water pollution statutes will collectively be referred to as the Clean Water Act. The 72-page permit is divided into 6 parts. There is an overview and findings followed by: a statement of discharge prohibitions; a listing of receiving water limitations; the Storm Water Quality Management Program; an explanation of special provisions; a set of definitions; and a list of what are characterized as standard provisions. The county, the flood control district, and the 84 cities are designated in the permit as the permittees. The findings and permit are as follows.

B. Findings

The permit found that the county, the flood control district, and the 84 cities discharge and contribute to the release of pollutants from "municipal separate storm sewer systems" (storm drain systems). These discharges were the subject of permits issued by the regional board in 1990 and 1996. The 1996 order served as the National Pollutant Discharge Elimination System permit for the discharge of municipal storm water.

The regional board found that storm drain systems in the county discharged cyanide, indicator bacteria, total dissolved solids, total suspended solids, turbidity, nutrients, total aluminum, dissolved cadmium, copper, lead, total mercury, nickel, zinc, bis(2-ethylhexyl)phthalate, polycyclic aromatic hydrocarbons, diazinon, and chlorpyrifos. According to the regional board, there were certain pollutants present in urban runoff which resulted from sources over which the permittees had no control. Among the runoff sources over which the permittees have no control are polycyclic aromatic hydrocarbons which are the products of internal combustion engines or copper from brake pad wear. Various reports prepared by the regional board, the Los Angeles County Grand Jury, and academic institutions indicated pollutants are threatening to or actually impairing the beneficial uses of water bodies in the Los Angeles region.

The regional board concluded that urbanization: increased the velocity, volume, and duration of water runoff; increased erosion; and adversely affected natural drainages. The regional board found: "The [county] has identified as the seven highest priority industrial and commercial critical source types, (i) wholesale trade (scrap recycling, auto dismantling); (ii) automotive repair/parking; (iii) fabricated metal products; (iv) motor freight; (v) chemical and allied products; (vi) automotive dealers/gas stations; [and] (vii) primary metal products." Also, the regional board concluded "auto repair facilities" contribute "significant concentrations of heavy metals" to storm waters. Moreover, paved surfaces such as those outside fast food establishments or parking lots "are potential sources of pollutants" in storm water runoff. Further, storm water runoff from retail gas establishments "have concentrations" of heavy metals and hydrocarbons.

The regional board further made findings concerning the background of the permit and its coverage area. The essential components of a Storm Water Management Program are: adequate legal authority; fiscal resources; the actual Storm Water Quality Management Program itself; and a monitoring program. A Storm Water Quality Management Program consists of: a Public Information and Participation Program; an Industrial/Commercial Facilities Program: a Development Planning Program; a Development Construction Program; a Public Agency Activities Program; and an Illicit Connection and Illicit Discharges Elimination Program. The permittees filed a Report of Waste Discharge dated January 31, 2001, which contained a proposed Storm Water Quality Management Program.

C. Prohibited And Allowable Discharges

In the prohibited discharges portion of the permit, the county and the cities were required to "effectively prohibit non-storm water discharges" into their storm sewer systems. This prohibition contains the following exceptions: where the discharge is covered by a National Pollutant Discharge Elimination permit for non-storm water emission; natural springs and rising ground water; flows from riparian habitats or wetlands; stream diversions pursuant to a permit issued by the regional board; "uncontaminated ground water infiltrations" as defined by 40 Code of Federal Regulations, part 35.2005(b)(20) (1990); and waters from emergency fire fighting flows. Another category of permissible discharges were flows incidental to urban activities consisting of: reclaimed and potable landscape irrigation runoff; potable drinking water discharges which comply with the American Water Works Association guidelines for dechlorination and "suspended solids reduction practices"; drains for foundations, footings, and crawl spaces; air conditioning condensate; "dechlorinated/debrominated" swimming pool discharges; dewatering of lakes and decorative fountains; non-commercial car washing by residents or non-profit organizations; and sidewalk rinsing.

The regional board's executive officer was granted authority to add or remove categories of non-storm water discharges. If one of the foregoing categories was determined to be "a source of pollutants" by the regional board's executive officer, the discharge was to be no longer exempt. The executive officer retained the authority to impose conditions on the city or county to ensure that the discharge was "not a source of pollutants." Also, the executive director was given the authority to impose additional "prohibitions on nonstorm water discharges" after considering either of two factors. The first factor the regional board's executive officer could consider is anti-degradation policies. The second factor the regional board's executive officer could consider is the total maximum load an impaired water body can receive and still meet applicable water quality standards and protect beneficial uses. (33 U.S.C. § 1313(d)(1).)

D. Receiving Water Limitations

Receiving waters are defined thusly, "`Receiving waters' means all surface water bodies...." Discharges from storm sewer systems that "cause or contribute" to violations of "Water Quality Standards" objectives in receiving waters as specified in state and federal water quality plans were prohibited. Storm or non-storm water discharges from storm sewer systems which constitute a nuisance were also prohibited. The term nuisance is defined, "`Nuisance' means anything that meets all of the following requirements: (1) is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property; (2) affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be...

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