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  • 12/14/2011 11:00 PM | Deleted user
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    On December 2, 2011, Sacramento Superior Court Judge Lloyd G. Connelly issued a decision invalidating the numeric effluent limitations (NELs) contained in the General Permit for Storm Water Discharges Associated With Construction and Land Disturbance Activities, State Water Resources Control Board Order 2009-009-DQ (the Construction General Permit or CGP).  (California Building Industry Association, et al. v. State Water Resources Control Board, Sacramento County Superior Court Case No. 34-2009-80000338.)  The court found the NELs were not supported by substantial evidence, and that the State Water Board failed to comply with federal Clean Water Act requirements for the establishment of technology based numeric effluent limitations.  The court granted a peremptory writ of mandate ordering the State Water Board to set aside the portions of the GCP imposing NELs for turbidity and pH and to refrain from enforcing the NELs.  Other provisions of the CGP remain in effect and enforceable.

    The California Building Industry Association (CBIA) challenged the Construction General Permit on multiple grounds.  First, CBIA claimed that the CGP established NELs for turbidity and pH applicable to stormwater runoff from high risk (Level 3) construction sites without evidentiary support and without consideration of the factors enumerated in federal law for evaluation of NELs.  As discussed below, the court agreed with CBIA on this point and invalidated the NELs.  The court rejected CBIA’s remaining challenges to the permit, including the contention that certain permit provisions are more stringent than required by federal law and thus State law requires an assessment of specified public interest factors, including consideration of economics.

    In rejecting CBIA’s argument that the numeric effluent limitations imposed in the CGP go beyond federal law because the U.S. Environmental Protection Agency (EPA) has not adopted numeric effluent limitation guidelines for turbidity and pH, the court stated that a numeric limit, when properly developed by the State Water Board using best professional judgment, is no more strict than a narrative effluent limitation developed to meet the same water quality standard.  The court also found that the post-construction provisions of the permit, requiring projects to install best management practices and establish a long-term maintenance plan, did not exceed the State Water Board’s authority because the installation of the BMPs and the development of the plan occur during the period of coverage under the permit rather than after termination.

    With regard to the NELs, the court began its analysis with the Clean Water Act (33 U.S.C. § 1251 et seq.)  The Act requires states to develop technology-based effluent limitations on a case-by-case basis in the absence of applicable U.S. EPA-promulgated effluent limitation guidelines.  In developing the NELs, the State Water Board was required to apply specified factors to identify the degree of pollutant reduction that could be provided by various control measures and practices.  CBIA argued, and the court concurred, that the turbidity and pH NELs in the CGP were not derived from relevant performance data.  The court noted, “[a]bsent from the Board’s discussion of how the turbidity NEL of 500 NTU was developed is performance data for the specific BMP measures and practices in various construction site conditions.”  None of the analyses cited by the Water Board “provide data from which it can be determined that available technologies are capable of controlling erosion and reducing sediment discharges from construction sites with a variety of soils, climates and topographies to a turbidity of 500 NTU or lower.”  To comply with the Clean Water Act, the State Water Board was required to identify available technologies, gather data characterizing the performance of the technologies under various site conditions, and derive NELs consistent with the performance data. 

    The application of numeric limits to stormwater has been an issue of significant concern within the regulated community.  This decision sheds light on the type and specificity of information required to support the imposition of numeric requirements on stormwater discharges.  The case is also important in affirming that where particular elements are set forth in statute and regulation, the State Water Board is obligated to meaningfully evaluate those factors in establishing enforceable requirements.

    For additional information on California Building Industry Association, et al. v. State Water Resources Control Board, Sacramento County Superior Court Case No. 34-2009-80000338, contact Roberta Larson at blarson@somachlaw.com.

    Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.
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