This case was last updated from Los Angeles County Superior Courts on 06/28/2019 at 00:25:30 (UTC).

NATURAL RESOURCES DEFENSE COUNCIL INC ET AL VS STATE WATER R

Case Summary

On 07/24/2015 NATURAL RESOURCES DEFENSE COUNCIL INC filed an Other - Writ Of Mandamus lawsuit against STATE WATER R. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are JOANNE O'DONNELL, ROBERT H. O'BRIEN, LUIS A. LAVIN, KEVIN C. BRAZILE and AMY D. HOGUE. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6962

  • Filing Date:

    07/24/2015

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Other - Writ Of Mandamus

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

JOANNE O'DONNELL

ROBERT H. O'BRIEN

LUIS A. LAVIN

KEVIN C. BRAZILE

AMY D. HOGUE

 

Party Details

Plaintiffs and Petitioners

LOS ANGELES WATERKEEPER

NATURAL RESOURCES DEFENSE COUNCIL INC.

CITY OF GARDENA

CITY OF DUARTE

Defendants and Respondents

CALIFORNIA REGIONAL WATER QUALITY CONTROL

STATE WATER RESOURCES CONTROL BOARD

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

PRANGE JACLYN H.

LAWYERS FOR CLEAN WATER INC.

HAYAT BECKY

JACLYN H. PRANGE ESQ.

RUTAN & TUCKER LAW OFFICES OF

LOCKE LORD LLP

Defendant and Respondent Attorneys

JENNIFER K. TEMPLE

ARENS HELEN G. DEPUTY ATTORNEY GENERAL

Other Attorneys

COUNTY COUNSEL

RICHARDS WATSON & GERSHON

 

Court Documents

NOTICE OF RELATED CASE

8/5/2015: NOTICE OF RELATED CASE

PROOF OF SERVICE SUMMONS

8/19/2015: PROOF OF SERVICE SUMMONS

ENVIRONMENTAL RETITIONERS' OPPOSITION TO MOTIONS TO TRANSFER VENUE

9/24/2015: ENVIRONMENTAL RETITIONERS' OPPOSITION TO MOTIONS TO TRANSFER VENUE

ENVIRONMENTAL RETITIONERS' OPPOSITION TO MOTIONS TO TRANSFER VENUE

9/24/2015: ENVIRONMENTAL RETITIONERS' OPPOSITION TO MOTIONS TO TRANSFER VENUE

RESPONDENTS' REQUEST FOR JUDICIAL NOTICE

10/29/2015: RESPONDENTS' REQUEST FOR JUDICIAL NOTICE

SUPPLEMENTAL PROOF OF SERVICE: THE NOTICE OF MOTION AND MOTION TO RELATED CASES; MEMORANDUM IN SUPPORT ANE DECLARATION OF JENNIFER KALNINS TEMPLE; ETC.

10/30/2015: SUPPLEMENTAL PROOF OF SERVICE: THE NOTICE OF MOTION AND MOTION TO RELATED CASES; MEMORANDUM IN SUPPORT ANE DECLARATION OF JENNIFER KALNINS TEMPLE; ETC.

CITY OF DUARTE AND CITY OF HUNTINGTON PARK'S [PETITIONERS IN CITIES OF DUARTE AND HUNTINGTON PARK V. STATE WATER RESOURCES CONTROL BOARD, ET AL., LASC CASE NO. BS156303] REQUEST FOR JUDICIAL NOTICE IN

11/18/2015: CITY OF DUARTE AND CITY OF HUNTINGTON PARK'S [PETITIONERS IN CITIES OF DUARTE AND HUNTINGTON PARK V. STATE WATER RESOURCES CONTROL BOARD, ET AL., LASC CASE NO. BS156303] REQUEST FOR JUDICIAL NOTICE IN

DECLARATION OF JACLYN H. PRANGE IN SUPPORT OF ENVIRONMENTAL PETITIONERS' OPPOSITION TO MOTION TO RELATE CASES

11/18/2015: DECLARATION OF JACLYN H. PRANGE IN SUPPORT OF ENVIRONMENTAL PETITIONERS' OPPOSITION TO MOTION TO RELATE CASES

ORDER GRANTING INTERVENORS CITIES OF AGOURA HILLS, ET AL LEAVE TO FILE COMPLAINT IN INTERVENTION

4/7/2016: ORDER GRANTING INTERVENORS CITIES OF AGOURA HILLS, ET AL LEAVE TO FILE COMPLAINT IN INTERVENTION

NOTICE OF ENTRY OF ORDER

6/21/2016: NOTICE OF ENTRY OF ORDER

PETITIONERS' REPLY BRIEF

9/16/2016: PETITIONERS' REPLY BRIEF

RESPONDENTS REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO PETITION FOR WRIT OF MANDATE, AND IN SUPPORT OF RESPONDENTS? OBJECTIONS TO PETITIONERS? REQUEST FOR JUDICIAL NOTICE LEVID. CODE, ? 4

9/23/2016: RESPONDENTS REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO PETITION FOR WRIT OF MANDATE, AND IN SUPPORT OF RESPONDENTS? OBJECTIONS TO PETITIONERS? REQUEST FOR JUDICIAL NOTICE LEVID. CODE, ? 4

Minute Order

10/27/2016: Minute Order

STIPULATION REGARDING TRIAL HEARING DATE

10/27/2016: STIPULATION REGARDING TRIAL HEARING DATE

ORDER GRANTING REQUESTS FOR JUDICIAL NOTICE

1/30/2017: ORDER GRANTING REQUESTS FOR JUDICIAL NOTICE

NOTICE OF APPEAL

4/14/2017: NOTICE OF APPEAL

NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED JURISDICTION)

4/19/2017: NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED JURISDICTION)

NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL PER CRC RULE 8.124

5/17/2017: NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL PER CRC RULE 8.124

90 More Documents Available

 

Docket Entries

  • 06/27/2019
  • Minute Order ( (Court Order)); Filed by Clerk

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  • 06/27/2019
  • Certificate of Mailing for (Minute Order (Court Order) of 06/27/2019); Filed by Clerk

    Read MoreRead Less
  • 03/14/2019
  • Affirmed in part, reversed in part, and remanded with directions. B282016; Filed by Clerk

    Read MoreRead Less
  • 05/17/2017
  • NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL PER CRC RULE 8.124

    Read MoreRead Less
  • 04/19/2017
  • Ntc to Attorney re Notice of Appeal; Filed by Clerk

    Read MoreRead Less
  • 04/19/2017
  • NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED JURISDICTION)

    Read MoreRead Less
  • 04/14/2017
  • APPELLANTS NOTICE DESIGNATING RECORD ON APPEAL

    Read MoreRead Less
  • 04/14/2017
  • NOTICE OF APPEAL

    Read MoreRead Less
  • 04/14/2017
  • Notice of Appeal; Filed by Natural Resources Defense Council, Inc. (Plaintiff)

    Read MoreRead Less
  • 04/14/2017
  • Notice of Designation of Record; Filed by Natural Resources Defense Council, Inc. (Plaintiff)

    Read MoreRead Less
193 More Docket Entries
  • 08/05/2015
  • NOTICE OF RELATED CASE

    Read MoreRead Less
  • 07/30/2015
  • NOTICE OF STATUS CONFERENCE AND ORDER

    Read MoreRead Less
  • 07/30/2015
  • NOTICE OF STATUS CONFERENCE AND ORDER

    Read MoreRead Less
  • 07/30/2015
  • Notice of Status Conference filed; Filed by Clerk

    Read MoreRead Less
  • 07/30/2015
  • Notice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

    Read MoreRead Less
  • 07/30/2015
  • Notice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

    Read MoreRead Less
  • 07/30/2015
  • NOTICE OF STATUS CONFERENCE AND ORDER

    Read MoreRead Less
  • 07/24/2015
  • VERIFIED PETITION FOR WRIT OF MANDATE

    Read MoreRead Less
  • 07/24/2015
  • SUMMONS ON PETITION

    Read MoreRead Less
  • 07/24/2015
  • Petition; Filed by null

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Tentative Rulings

Case Number: BS156962    Hearing Date: October 07, 2020    Dept: 86

NATURAL RESOURCES DEFENSE COUNCIL, INC. v. STATE WATER RESOURCES CONTROL BOARD

Case Number: BS156962

Hearing Date: October 7, 2020

[Tentative] ORDER DENYING/GRANTING THE WRIT PETITION


Petitioners, Natural Resource Defense Council and Los Angeles Waterkeeper, filed this action against the State Water Resources Control Board (the State Board) and the California Water Quality Control Board (the Regional Board) seeking a court order invalidating the 2012 Los Angeles County Municipal Separate Storm Sewer System Permit (the 2012 Permit), a National Pollutant Discharge Elimination System (NPDES) permit that regulates municipal separate storm sewer systems’ (MS4s) discharge of storm water and urban runoff.

The court, the Honorable Judge Amy Hogue, denied the petition for administrative mandamus in its entirety in January 2017. The Court of Appeal affirmed the trial court's anti-backsliding ruling, but reversed its anti-degradation ruling and remanded the matter with directions as set forth below. (Natural Resources Defense Council v. State Water Resources Control Board (Cal. Ct. App., Dec. 24, 2018, No. B282016) 2018 WL 6735201, at *1.)

With respect to the anti-degradation ruling, the Court of Appeal determined the trial court had correctly determined a simple anti-degradation analysis was appropriate based on substantial evidence. (Id. at *6.) However, the Court of Appeal also concluded:

“Even when the simple anti-degradation analysis applies, a Regional Board must still decide whether the permit complies with anti-degradation policies. Plaintiffs contend that the trial court erred by applying the wrong standard of review when analyzing whether the 2012 Permit complies with anti-degradation policies. We agree.” (Ibid.)

Accordingly, the Court of Appeal remanded the matter back 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.” (Id. at *8.)

Parties in Intervention, twenty intervenor cities (Cities), provide only a brief opposition relevant to the remand, arguing that the “State Board’s Final Order fully address why the 2012 MS4 Permit satisfies the federal and state anti-degradation polices.” (Cities’ Opposition 10:23-11:4.).

Parties in Intervention, County of Los Angeles and Los Angeles Flood Control District (jointly, the County), also oppose the petition for the same reason expressed by the Cities.

Respondents, the State Board and the Regional Board, fully oppose on all grounds, including the anti-degradation policy.

The Petition is DENIED/GRANTED.

The court has raised issues related to the State Board’s baseline analysis herein. The court requests Petitioners and Respondents address those questions during argument.

Respondent shall be prepared to discuss the evidence in the administrative record supporting the State Board’s conclusions as to the simple anti-degradation analysis. It seems to the court the stated reasons are nothing more than conclusions unsupported by citations to evidence in the record. In such case, granting the writ may be appropriate.

STATEMENT OF THE CASE ON REMAND[1]

In 1915, the California Legislature enacted the Los Angeles County Flood Control Act. Its purpose was to provide for the control and conservation of flood, storm and other waste waters within the flood control district. In the ensuing decades, as Los Angeles grew rapidly and acres of undeveloped land were paved or otherwise developed, storm water that once would have been absorbed by the ground flowed into the region's rivers and creeks. When those waterways could not contain the increased water flow, extensive flooding resulted. To address the flooding, the United States Army Corps of Engineers lined the Los Angeles River and Ballona Creek with concrete and began to build an underground urban drainage system. As Los Angeles continued its expansion, that drainage system was also expanded, and ultimately developed into today's Los Angeles County’s MS4.

In 1972, Congress enacted the Clean Water Act (or the Act) to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” (33 U.S.C. § 1251, subd. (a).)

“The Clean Water Act employs the basic strategy of prohibiting emissions from ‘point sources,’ [1] unless the [emitter] obtains . . . an NPDES permit.” (Building Industry Assn. of San Diego County v. State Water Resources Control Bd. (2004) 124 Cal.App.4th 866, 872.) NPDES permits are required for “a discharge from a municipal separate storm sewer system serving a population of 250,000 or more.” (33 U.S.C. § 1342, subd. (p)(2)(C).)

“Under the . . . NPDES permit system, the states are required to develop water quality standards. [Citations.] A water quality standard ‘establish[es] the desired condition of a waterway.’ [Citation.] A water quality standard for any given waterway, or ‘water body,’ has two components: (1) the designated beneficial uses of the water body and (2) the water quality criteria sufficient to protect those uses. [Citations.]” (Communities for a Better Environment v. State Water Resources Control Bd. (2003) 109 Cal.App.4th 1089, 1092; see also 33 U.S.C. § 1313(a), (c)(2)(A); 40 C.F.R. § 131.3, subd. (i).)

The Act also requires states to “identify those waters within its boundaries for which the effluent limitations required by [the Act] are not stringent enough to implement any water quality standard applicable to such waters.” (33 U.S.C. § 1313, subd. (d)(1)(A).) “This list of substandard waters is known as the ‘303(d) list’ . . . .” (City of Arcadia v. U.S. Environmental Protection Agency (9th Cir.2005) 411 F.3d 1103, 1105.)

For any “impaired” water bodies a state must “establish a priority ranking for such waters, taking into account the severity of the pollution and the uses to be made of such waters” (33 U.S.C. § 1313, subd. (d)(1)(A)), and “the total maximum daily load (TMDL) [ ] for those pollutants . . . at a level necessary to implement the applicable water quality standards with seasonal variations and 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, subd. (d)(1)(C); 40 C.F.R. 130.2, subd. (j); see also City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1404.)

The EPA has authorized the State of California to issue NPDES permits. (33 U.S.C. § 1342, subd. (b).)

In 1990, the Regional Board issues a NPDES permit to regulate stormwater discharges in Los Angeles County. (SB-AR 13306.) The Regional Board amended the permit in 1996 and again in 2001 (the 2001 Permit). (RB-AR 51168.) The 2001 Permit covers discharges in Los Angeles County, the Los Angeles County Flood Control District, and 84 incorporated cities within the County. (RB-AR 51168.)

The Regional Board renewed the 2001 Permit by adopting the 2012 Permit on November 8, 2012. (SB-AR 13196.) The 2012 Permit incorporate 33 total maximum daily loads for various bodies of water. (SB-AR 13197.)

After the adoption of the 2012 Permit, Petitioners filed a petition for administrative review with the State Board under Water Code section 13320. (SB-AR 2118-2125.) On June 16, 2015, the State Board adopted Order WQ No. 2015-0075, which upheld the 2012 Permit after making certain findings. (SB-AR 13213-13245.)

This action ensued.

STANDARD OF REVIEW

“A party aggrieved by a final decision or order of a regional board . . . may obtain review of the decision or order of the regional board in the superior court by filing in the court a petition for writ of mandate.” (Wat. Code § 13330, subd. (b).) Further, the Water Code specifies the petition for writ of mandate is governed by Code of Civil Procedure section 1094.5, subdivision (c), and “the court shall exercise its independent judgment on the evidence.” (Wat. Code § 13330, subd. (e).)

Under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an administrative decision are: whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc. § 1094.5, subd. (b).)

“ ‘In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.’ ” (Building Industry Assn. of San Diego County v. State Water Resources Control Bd., supra, 124 Cal.App.4th at 879.)

“The question is not whether any rational fact finder could make the finding below, but whether the reviewing court believe[s] the finding actually was correct.” (Coastal Environmental Rights Foundation v. California Regional Water Quality Control Bd. (2017) 12 Cal.App.5th 178, 188.)

ANALYSIS

Relevant to the issues on remand, Petitioners argue the 2012 Permit violates specified state and federal antidegradation policies prohibiting degradation of high-quality waters and further degradation of waters that are already impaired by pollution. Petitioners contend the Regional Board failed to conduct analyses required by the law and the State Board accepted the Regional Board’s “conclusory” analysis because the State Board lacked sufficient data to establish a baseline level of pollutants reaching back to water quality levels as they existed in 1968. Petitioners argue that the State Board’s conclusory statements regarding anti-degradation fail to bridge the analytical gap between the data relied on and their conclusion that there was no degradation.

The 2012 Permit Does Not/Violates Anti-Degradation Policies:

Federal regulation 40 C.F.R. section 131.12, subdivision (a) requires states to develop and adopt a statewide anti-degradation policy to ensure that “[e]xisting instream water uses and the level of water quality necessary to protect [those] uses [are] maintained and protected.” (See also SB-AR 9759.)

In 1968, the State Board, in Resolution No. 68-16, set forth the policy of the state to regulate permits for the disposal of wastes into the waters of the state so “as to achieve the ‘highest water quality consistent with maximum benefit to the people of the State.’” (Asociacion de Gente Unida por el Agua (2012) 210 Cal.App.4th 1255, 1261-1262 [Agua].) “High quality water” is the best water quality achieved since the State Board adopted the anti-degradation policy in 1968. (Id. at 1259.) That is, State Board Resolution No. 68-16 is California’s anti-degradation policy, which incorporates federal policy where federal policy apples. (SB-AR 13317, SB-AR 14889-14890 [State Board Resolution No. 68-16].) Resolution 68-16 resolves to preserve high quality waters requiring that any change deleterious to that quality “will be consistent with maximum benefit to the people of the State, will not unreasonably affect present and anticipated beneficial use of such water, and will not result in water quality less than that prescribed in the polices.” (SB-AR 14338.) It also requires the “best practicable treatment or control of the discharge” in order to assure the highest water quality “consistent with maximum benefit to the people of the State.” (SB-AR 14338.)

This court is tasked with determining whether 2012 Permit complied with anti-degradation policies. The court makes this determination under an independent judgment standard of review.

Pursuant to Resolution No. 68-16, a permit complies with anti-degradation policies if the Regional Board makes certain findings. (Asociacion de Gente Unida por el Agua, supra, 210 Cal.App.4th at 1278; SB-AR 14889-14890 [Resolution No. 68-16].)

“The State Board has described these findings as a two-step process. ‘The first step is if a discharge will degrade high quality water, the discharge may be allowed if any change in water quality (1) will be consistent with maximum benefit to the people of the State, (2) will not unreasonably affect present and anticipated beneficial use of such water, and (3) will not result in water quality less than that prescribed in state policies (e.g. water quality objectives in Water Quality Control Plans). The second step is that any activities that result in discharges to such high quality waters are required to use the best practicable treatment or control of the discharge necessary to avoid a pollution or nuisance and to maintain the highest water quality consistent with the maximum benefit to the people of the State.’ [Citation.]” (Asociacion de Gente Unida por el Agua, supra, 210 Cal.App.4th at p. 1278.)

Here, the State Board addressed the question of antidegradation and determined the 2012 was consistent with federal and state anti-degradation policies. (SB-AR 13218-13225.)

Petitioner challenges the State Board’s conclusions regarding the 2012 permit on three grounds.

First, Petitioners argue the State Board failed to identify which waters covered by the 2012 Permit qualify as “high quality.” Petitioners contend this failure effectively prohibits the State Board from performing the required baseline comparison of water quality because the State Board provided no evidence for its baseline for comparison dating back to 1968 as required under Administrative Procedures Update (APU) 90-004 (APU 90-004). Relying on the Regional Board’s evidence, the State Board found there was insufficient data to determine whether any of the waters at issue were impaired as early as 1968. (SB AR 13220, 13224.) Petitioner contends the State Board’s reliance on the Regional Board’s evidence was “patently inadequate” to make its findings and cannot argue no such record exist when no effort was made to find this evidence.[2] This baseline determination is an essential foundation for any anti-degradation analysis.

Respondents assert there is “little to no evidence” to determine a baseline from 1968, but to the extent there is evidence of past water quality in the region, it shows impairment. (Opposition 18:24-19:1 [Citing SB-AR 9859-9860, fn. 193].) Respondents also contend there is significant evidence in the record to support a finding “Los Angeles County receiving waters have been heavily impacted for several decades.” (Opposition 18:23-24.) Certainly, the record is replete with historical information noted by the State Board related to impairment.[3]

Based on its own statements, the State Board appears to have admited it did have evidence before it from which it could determine baselines back to 1968 for some receiving waters. More specifically, the State Board noted the evidence in the record “indicates that it was unlikely that many water bodies were high quality even as far back as 1968, but [it] could not make a blanket statement to that effect.” (SB-AR 13222.) The State Board findings also suggest some evidence did exist for which it could determine “whether these water bodies were impaired as early as 1968 . . . .” (SB AR 13224.) Such evidence did not exist, however, for “most cases.” (SB AR 13224.) Thus, based on its own statements, historical evidence may have been available to the State Board in the administrative record dating back to 1968.

As noted by the Court of Appeal in this matter (quoting our Supreme Court), “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.)

To the extent the State Board may have abused its discretion in failing to examine each data point available to it in the administrative record to consider baselines and impairment, given the extensive and seemingly undisputed evidence concerning overall impairment, Petitioners have not demonstrated how any such failure was a prejudicial abuse of discretion.[4] As noted by Respondents, “Petitioners have not identified any other data to dispute these facts, nor did they seek to augment the record with such data.” (Opposition 19:1-3.)

[Do Petitioners contend the State Board was required to “conduct hundreds of pollutant-by-pollutant and water body-by-water body analyses” (Opposition 21:3-4) as essential to an anti-degradation analysis? If so, what authority supports the position. Similarly, what supports the State Board’s position no such exacting analysis is required? It would seem Agua requires baseline water quality must be determined for all receiving waters. (Agua, supra, 210 Cal.App.4th at 1270. [“When undertaking an antidegradation analysis, the Regional Board must compare baseline water quality . . . to the water quality objectives.”) Additionally, without the baseline analysis, a water board could not determine whether water is high quality as to one or more constituents and not as to others.]

Finally, to the extent Petitioners contend the State Board’s factual finding related to impaired waters, the court finds the weight of the evidence demonstrates the water quality in the region has long been impaired. (It does not appear to the court Petitioners dispute the general characterization regional water is impaired.)

Second, Petitioners argue the State Board did not support its finding there would be no degradation of impaired waters with any evidence. Petitioners’ argument, however, should be more precisely framed in the language of the applicable federal regulations—does the weight of the evidence support a finding the 2012 Permit ensures “[e]xisting instream water uses and the level of water quality necessary to protect the existing uses [are] maintained and protected”? (40 C.F.R. § 131.12, subd. (a).)

Petitioners contend the circumstances here are similar to those in Agua, supra, 210 Cal.App.4th at 1272-1273, where the Court rejected the water board’s findings as conclusory and factually incorrect. Here, the State Board claimed there would be no degradation because the 2012 Permit requires the permittees to comply with pollution limits designed to meet water quality standards. (SB-AR 13224.)

As noted above, the weight of the evidence demonstrates overall regional water quality impairment. The court agrees with Petitioners’ characterization that the State Board concluded there would be no degradation of these regionally impaired waters because the 2012 Permit requires permittees to comply with pollution limits designed to meet water quality standards. (SB-AR 13224.) Petitioners contend the State Board’s analysis, however, is based on the “safe harbor” provisions in the 2012 Permit allowing permittees “to violate water quality standards indefinitely.” (Opening Brief 19:17-18.) Petitioners argue the State Board’s conclusionary statements are inadequate to show no degradation will occur.

This case is distinguishable from Agua, supra, 210 Cal.App.4th at 1255. In Agua, the water board permitted the discharge of pollutants allowed by “historic practices to continue without change.” (Id. at 1273.) Those historic practices were in part responsible for groundwater impairment. Thus, without changing discharge practices, of course “degradation will continue.” (Ibid.)

In contrast to the discharge order in Agua, the permittees here are required to implement certain minimum control requirements whether they elect to develop a water management plan (WMP) or enhanced water management plan (EWMP). (SB-AR 9858-9860. [“Permit does not allow permittees’ historical practices to continue where those practices are inadequate to protect water quality. Either the permittee must implement a WMP/EWMP that is demonstrated to achieve water quality standards, or the permittee must meet stringent RWLs [receiving water limitations]. In neither instance does the Permit allow a continuation of a status quo that fails to meet applicable standards.”]) Accordingly, the 2012 Permit requires action by a permittee; it does not merely continue past practices in a business-as-usual fashion as in Agua.

Additionally, the 2012 Permit requires an extensive monitoring program designed to identify changes in water quality. Instead of monitoring only seven mass emission stations located in receiving waters, the 2012 Permit requires monitoring at hundreds of outfall monitoring sites. The extensive monitoring ensures accountability by dischargers.

Thus, the weight of the evidence supports the State Board’s findings. The evidence demonstrates the 2012 Permit is more restrictive than the 2001 Permit. As argued by Respondents, the 2012 Permit—which imposes the same RWLs as the 2001 Permit—now regulates the discharge of pollutants by imposing effluent limitations[5] based on 33 new watershed-based total maximum daily limits (TDMLs) designed to bring impaired water bodies back to water quality standards. (SB-AR 13594, 13827-13828 [Amended 2012 Permit]; SB-AR 13217-13219.) The 2012 Permit also requires enhanced monitoring as well to ensure compliance.

Finally, Petitioners argue the State Board’s degradation analysis “is legally inadequate.” (Opening Brief 20:11-12.) Petitioners contend the State Board was required to undertake a complete anti-degradation analysis under here. (Opening Brief 20:15-18 [citing SB-AR 14333 (complete analysis)].) The Court of Appeal found, however, agreed with this court’s previous determination the State Board was required to conduct a simple anti-degradation analysis here.

Nonetheless, Petitioners contend the evidence before the State Board does not support the State Board’s findings for any anti-degradation analysis. (Code Civ. Proc. § 1094.5, subd. (b).) They contend the State Board failed to perform the required (complete anti-degradation) analysis here and instead provided only a cursory discussion of the benefits of degradation or the extent of the impact. (SB-AR 13224-13225.) Petitioners assert the State Board did not even make an attempt to determine the cost of compliance, to determine whether maintaining high-quality waters will interfere with development, or to determine whether any particular development is economically or socially important. (See Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515.)

As noted earlier, certain findings must be made to support high quality water degradation:

“The State Board has described these findings as a two-step process. ‘The first step is if a discharge will degrade high quality water, the discharge may be allowed if any change in water quality (1) will be consistent with maximum benefit to the people of the State, (2) will not unreasonably affect present and anticipated beneficial use of such water, and (3) will not result in water quality less than that prescribed in state policies (e.g. water quality objectives in Water Quality Control Plans). The second step is that any activities that result in discharges to such high quality waters are required to use the best practicable treatment or control of the discharge necessary to avoid a pollution or nuisance and to maintain the highest water quality consistent with the maximum benefit to the people of the State.’ [Citation.]” (Asociacion de Gente Unida por el Agua, supra, 210 Cal.App.4th at p. 1278.) (See also SB-AR 14330.)

Here, the State Board recites two paragraphs of findings. (SB-AR 13224-13225.) The fact sheet recites in the same findings. (SB-AR 13592-13593.)

Respondent shall address at oral argument the evidence to support the findings necessary for the simple anti-degradation analysis. It appears to the court the State Board relied on mere conclusions and not evidence in conducting its analysis which would constitute an abuse of discretion.

CONCLUSION

For the foregoing reasons, the court will deny the Petition.

IT IS SO ORDERED.

October 7, 2020 ________________________________

Hon. Mitchell Beckloff

Judge of the Superior Court


[1] References to the administrative record are cited as “SB-AR” for the State Board record, “RB-AR” for the Regional Board record, and 2001 AR for the Regional Board record for the 2001 Permit.

[2] The Cities note although available data is insufficient to show impairment as early 1968, the data available does demonstrate impairment dating back more than two decades. (SB-AR 13222.) The Cities’ position merely relies on the findings of the State Board and fails to identify any evidence in the record the court may rely on to consider under its independent judgment—the weight of the evidence. The County similarly relies on the State Board’s findings rather than evidence the court can consider with its independent judgment.

[3] See e.g. Water Resources Control Board, State of California, Toxic Substances Monitoring Program, Ten Year Summary Report 1978-1987 (August 1990) (Administrative Record, Order No. 01-082, R0044666-44669); The Santa Monica Bay Restoration Project, An Assessment of Inputs of Fecal Indicator Organisms and Human Enteric Viruses from Two Santa Monica Storm Drains (June 1990) (Administrative Record, Order No. 01-082, R0047130-47174); Santa Monica Bay Restoration Project, Pathogens and Indicators in Storm Drains Within the Santa Monica Bay Watershed (June 1992) (Administrative Record, Order No. 01-082, R0047688-47748); Santa Monica Bay Restoration Project, Storm Drains as a Source of Surf Zone Bacterial Indicators and Human Enteric Viruses to Santa Monica Bay (August 1991) (Administrative Record, Order No. 01-082, R004779-47780); James M. Danza, Water Quality and Beneficial Use Investigation of the Los Angeles River: Prospects for Restored Beneficial Use (1994) (Administrative Record, Order No. 01-082, R0048073-48204); Southern California Coastal Water Research Project, Annual Report (1987) (Administrative Record, Order No. 01-082, R0048205-8304); National Research Council, Monitoring Southern California’s Coastal Waters (1990) (Administrative Record, Order No. 01-082, R0048306-48473); Southern California Coastal Water Research Project, Annual Report (1988-89) (Administrative Record, Order No. 01-082, R0048476-48482); City of Los Angeles, Wastewater Program Management Division, Santa Monica Bay Stormwater Pollutant Reduction Study (December 1987) (Administrative Record, Order No. 01-082, 0048485-48561; Santa Monica Bay Restoration Project, Santa Monica Bay Characterization Study Chapter 7, Urban Runoff (1993) (Administrative Record, Order No. 01-082, R0048714-48733); To California Regional Water Quality Control Board, Stormwater Runoff in Los Angeles and Ventura Counties (June 1988) (Administrative Record, Order No. 01- 082, R0050795-50888); Heal the Bay’s State of the Marina Report, Marina del Rey (July 9, 1993) (Administrative Record, Order No. 01-082, R0050999-0051022); County of Los Angeles, Department of Beaches and Harbors, The Marine Environment of Marina del Rey (October 1991-June 1992) (Administrative Record, Order No. 01-082, R0051023-51344); Prepared for American Oceans Campaign, Chemical Contaminant Release into the Santa Monica Bay, A Pilot Study (June 12, 1993) (Administrative Record, Order No. 01-082, R0051345-51557; Report to the Department of Beaches and Harbors, County of Los Angeles, The Marine Environment of Marina del Rey, October 1989 to September 1990 (March 1991) (Administrative Record, Order No. 01-082, R0052394 - 52721).

[4] Code of Civil Procedure section 1094.5, subdivision (b) allows a petitioner in administrative mandamus proceedings to show an abuse of discretion by an agency based on a failure to proceed as required by law. That failure, however, must be prejudicial.

[5] An “effluent limitation” is a restriction on pollutants discharged into certain waters. (33 U.S.C. § 1362, subd. (11).) States are required to identify waters within their boundaries for which the effluent limitations in sections 1311(b)(1)(A) and 1311(b)(1)(B) of the Clean Water Act are not stringent enough to implement the water quality standard applicable to those waters. (33 U.S.C. § 1313, subd. (d)(1)(A).) Such waters are called “impaired waters.” (City of Kennett, Missouri v. Environmental Protection Agency City of Kennett, Missouri v. Environmental Protection Agency, supra,

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