A state appellate court has upheld the San Diego Regional Water Quality Control Board's comprehensive regulations regarding municipal storm drainage discharges. The ruling is the first one published regarding the multiple challenges that the building industry and cities have filed against regional boards' heightened restrictions on urban runoff.

In the San Diego County case, the Building Industry Association (BIA) of San Diego County argued that the regulations went beyond the scope permissible under federal law. A unanimous three-judge panel of the Fourth District Court of Appeal, however, found nothing in federal law to preclude the regulations.

The issue of urban runoff has become a critical one for many planners and developers because compliance with the latest regulations often requires new development projects, even small ones, to at least slow down and filter their runoff. This is most often done with the construction of grassy drainage swales, detention ponds or infiltration basins (see CP&DR Environment Watch, October 2002, August 2001, March 2000). At the behest of the State Water Resources Control Board, regional water quality boards began adopting regulations about five years ago. Ever since, the development community and numerous cities that must enforce the standards have contested the regional water board decisions.

The Fourth District's ruling frustrated the development community. “We believe very strongly that the Court of Appeal has misconstrued both Congress's legislative intent and the relevant judicial precedent in construing the provisions dealing with municipal stormwater discharge,” David Mulliken, the BIA's attorney in the San Diego case, told the Los Angeles Daily Journal.

However, with litigation and administrative appeals regarding similar water quality regulations in other regions ongoing, the Fourth District's opinion appears to bolster the regulators' case.

In February 2001, the San Diego board approved new waste discharge requirements governing municipal storm sewers. The requirements applied to all 18 incorporated cities in San Diego County, the San Diego Unified Port District and the county. The new regulations prohibit municipalities from discharging pollutants if those pollutants would cause the receiving water body to violate applicable water quality standards. The regulations also demand that cities, the county and port district require businesses and residents to adopt “best management practices” for slowing stormwater and retaining or absorbing pollutants. The practices include structural controls that are part of new developments, as well as educational programs. Studies have found that urban runoff is a larger source of pollution than wastewater treatment plants and industrial outlets, and is largely responsible for pollution that has plagued some coastal areas.

The San Diego County BIA appealed the regional board's decision to the State Water Resources Control Board. With some minor revisions, the state board upheld the regional board's regulations. So the BIA sued, arguing that the regulations were impractical under federal law and unreasonable under state law. San Diego County Superior Court Judge Wayne Peterson ruled against the builders. On appeal, the Fourth District upheld the lower court's decision.

On appeal, the BIA only pressed its contention that the regulations go too far under federal law. The builders argued that under federal law, the “maximum extent practicable” standard - and not the higher “best management practices” standard - is the only one that state regulators my apply. The Fourth District disagreed.

The court reviewed at length the history of the federal Clean Water Act and later revisions contained in the Water Quality Act of 1987. The statutes and case law make clear that the Environmental Protection Agency - and its delegates, such as the state water board - must regulate storm sewers as “point sources” of pollution, according to the court. The 1987 legislation stated, in part, that permits for discharges from municipal storm sewers “shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the administrator or the state determines appropriate for the control of such pollutants.” (33 U.S. § 1342(p)(3)(B)(iii).)

According to the Fourth District, “Congress did not intend to substantively bar the EPA/state agency from imposing a more stringent water quality standard if the agency, based on its expertise and technical factual information and after the required administrative hearing procedure, found this standard to be a necessary and workable enforcement mechanism to achieving the goals of the Clean Water Act.”

Citing Defenders of Wildlife v. Browner, (9th Cir. 1999) 191 F.3d 1159, the court ruled that the statute gives “the EPA discretion to determine what pollution controls are appropriate.”

The court also rejected the BIA's contention that standards greater than “maximum extent practicable” were, by definition, impossible to meet. The maximum extent practicable standard is less stringent “than another Clean Water Act standard that relies on available technologies.” Thus, standards beyond the maximum extent practicable are not necessarily impossible to achieve, the court held.

“[T]he record does not support that any required control is, or will be, impossible to implement,” the court ruled.

In the unpublished portion of its decision, the Fourth Distinct ruled that the storm drain regulations were statutorily exempt from California Environmental Quality Act review.

The Case:
Building Industry Association of San Diego County v. State Water Resources Control Board, No. D042385, 04 C.D.O.S. 10694, 2004 DJDAR 14492. Filed December 7, 2004.
The Lawyers:
For the BIA: David Mulliken, Latham & Watkins, (619) 236-1234.
For the state: Mary Hackenbracht, assistant attorney general, (510) 622-2140.