ARCADIA v. STATE WATER RESOURCES CONTROL BOARD









Filed 12/14/10 Certified for publication 12/22/10 (order attached)









IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

CITY OF ARCADIA et al., Plaintiffs and Appellants, v. STATE WATER RESOURCES CONTROL BOARD et al., Defendants and Appellants; NATURAL RESOURCES DEFENSE COUNCIL et al., Intervenors and Appellants.

G041545 (Super. Ct. No. 06CC02974) O P I N I O N

Appeals from a judgment of the Superior Court of Orange County, Thierry Patrick Colaw, Judge. Requests for judicial notice. Motion to strike portions of a brief. Judgment reversed. Requests denied. Motion denied.
Rutan & Tucker, Richard Montevideo and Peter J. Howell for Plaintiffs and Appellants.
Andrea Sheridan Ordin, County Counsel (Los Angeles), Judith A. Fries, Laurie E. Dodds, Deputy County Counsel; Burhenn & Gest, Howard Best and David W. Burhenn for County of Los Angeles and Los Angeles County Flood Control District as Amici Curiae on behalf of Plaintiffs and Appellants.
Downey Brand, Melissa A. Thorme; Archer Norris and Peter W. McGaw for California Association of Sanitation Agencies as Amicus Curiae on behalf of Plaintiffs and Appellants.
Aleshire & Wynder, David J. Aleshire and Wesley A. Miliband for League of California Cities, California Contract Cities Association and California State Association of Counties as Amici Curiae on behalf of Plaintiffs and Appellants.
Edmund G. Brown, Jr., Attorney General, Mary E. Hackenbracht, Assistant Attorney General, Jennifer F. Novak and Michael W. Hughes, Deputy Attorneys General for Defendants and Appellants State Water Resources Control Board and California Regional Water Quality Control Board, Los Angeles Region.
David S. Beckman, Michelle S. Mehta, and Noah J. Garrison for Intervenors and Appellants Natural Resources Defense Council, Santa Monica Baykeeper, and Heal The Bay.



This case concerns the construction and application of the federal Clean Water Act (Clean Water Act; 33 U.S.C. § 1251 et seq.) and the Porter-Cologne Water Quality Control Act (Porter-Cologne Act; Wat. Code, § 13000 et seq., unless otherwise stated, all further statutory references are to the Water Code).
The superior court entered a judgment issuing a writ of mandate that vacated a resolution by defendant California Regional Water Quality Control Board, Los Angeles Region (Regional Board) after it completed a periodic review of its water quality control plan. The judgment further directed the Regional Board to either reopen the prior review proceeding or, during its next scheduled periodic review, conduct a public
hearing on the plan’s water quality objectives applicable to storm water or urban
runoff and, if necessary, revise those objectives in light of the factors listed in sections 13000 and 13241 of the Porter-Cologne Act. In addition, the court barred the Regional Board from basing its water quality objectives on “potential” beneficial uses of water bodies covered by the water quality control plan. However, in so ruling the trial
court allowed defendants to continue using the current water quality control plan
to avoid any “unintended consequences which . . . may result from immediately
halting[,] . . . implementation, application and/or enforcement of the . . . [p]lan . . . .”
Defendants State Water Resources Control Board (State Board) and Regional Board, and intervenors Natural Resources Defense Council, Santa Monica Baykeeper, and Heal the Bay, challenge the judgment on several grounds, including statute of limitations and collateral estoppel, as well as the merits of the court’s decision. Plaintiffs, 18 Los Angeles County municipalities

and Building Industry Legal Defense Foundation (BILDF), a nonprofit corporation representing the construction industry, challenge only the court’s ruling that defendants may enforce the current water quality control plan pending further review proceedings.
We conclude defendants’ and intervenors’ collateral estoppel claim and their substantive arguments have merit and reverse the judgment. As a consequence, plaintiffs’ appeal is moot.

STATUTORY BACKGROUND

Several appellate court decisions have summarized what has been described as “the complicated web of federal and state laws and regulations concerning water pollution . . . .” (City of Rancho Cucamonga v. Regional Water Quality Control Bd. (2006) 135 Cal.App.4th 1377, 1380.) The following is a summary of the overall statutory framework.

1. The Clean Water Act
“In 1972, Congress enacted amendments [citation] to the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), which, as amended in 1977, is commonly known as the Clean Water Act. The Clean Water Act is a ‘comprehensive water quality statute designed “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”’ [Citations.]” (City of Burbank v. State Water Resources Control Bd. (2005) 35 Cal.4th 613, 619-620.)
The Clean Water Act’s primary goal is to eliminate “the discharge of pollutants into . . . navigable waters . . . .” (33 U.S.C. § 1251(a)(1).) “To accomplish this goal, the Act [has] established ‘effluent limitations,’ which are restrictions on the ‘quantities, rates, and concentrations of chemical, physical, biological, and other constituents’; these effluent limitations allow the discharge of pollutants only when the water has been satisfactorily treated to conform with federal water quality standards. [Citations.]” (City of Burbank v. State Water Resources Control Bd., supra, 35 Cal.4th at p. 620; see also Communities for a Better Environment v. State Water Resources Control Bd. (2003) 109 Cal.App.4th 1089, 1093 [“‘Effluent limitations are a means of achieving water quality standards’”]; 33 U.S.C. §§ 1311, 1362(11).)
“Part of the federal Clean Water Act is the National Pollutant Discharge Elimination System (NPDES), ‘[t]he primary means’ for enforcing effluent limitations and standards under the Clean Water Act. [Citation.] The NPDES sets out the conditions under which the federal EPA [Environmental Protection Agency] or a state with an approved water quality control program can issue permits for the discharge of pollutants in wastewater. [Citations.]” (City of Burbank v. State Water Resources Control Bd., supra, 35 Cal.4th at p. 621.) NPDES permits must be renewed every five years. (33 U.S.C. § 1342(b)(1)(B); § 13380.)
“[T]he proper scope of the controls in an NPDES permit depends on the applicable state water quality standards for the affected water bodies. [Citation.]” (Building Industry Assn. of San Diego County v. State Water Resources Control Bd. (2004) 124 Cal.App.4th 866, 873.) “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., supra, 109 Cal.App.4th at p. 1092; see also 33 U.S.C. § 1313(a), (c)(2)(A); 40 C.F.R. § 131.3(i) (2010).)
The Clean Water 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(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 these 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(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(d)(1)(C); see also City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1404 .)
“‘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.’ [Citation.] ‘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.’ [Citations.] A TMDL requires a ‘margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality.’ [Citation.]” (City of Arcadia v. State Water Resources Control Bd., supra, 135 Cal.App.4th at pp. 1404-1405, fn. omitted.)

2. The Porter-Cologne Act
“In California, the controlling law is the Porter-Cologne Water Quality Control Act . . . . [Citation.] Its goal is ‘to attain the highest water quality which is reasonable, considering all demands being made and to be made on those waters and the total values involved, beneficial and detrimental, economic and social, tangible and intangible.’ (§ 13000.) The task of accomplishing this belongs to the State Water Resources Control Board (State Board) and the nine Regional Water Quality Control Boards; together the State Board and the regional boards comprise ‘the principal state agencies with primary responsibility for the coordination and control of water quality.’ (§ 13001.) . . . [¶] Whereas the State Board establishes statewide policy for water quality control (§ 13140), the regional boards ‘formulate and adopt water quality control plans for all areas within [a] region’ (§ 13240). The regional boards’ water quality plans, called ‘basin plans,’ must address the beneficial uses to be protected as well as water quality objectives, and they must establish a program of implementation. (§ 13050, subd. (j).)” (City of Burbank v. State Water Resources Control Bd., supra, 35 Cal.4th at p. 619, fns. omitted.) The Porter-Cologne Act defines “water quality objectives” to mean “the limits or levels of water quality constituents or characteristics which are established for the reasonable protection of beneficial uses of water or the prevention of nuisance within a specific area.” (§ 13050, subd. (h).)
A basin plan must conform to state policy for water quality control established by defendant State Board, plus be submitted to that board for approval before becoming effective. (§§ 13140, 13141, & 13245.) The plan must also be “periodically reviewed” (§ 13143) at least every three years (33 U.S.C. § 1313(c)(1)), at which time it “may be revised” by the board (§ 13143).
“Shortly after Congress enacted the Clean Water Act . . ., the California Legislature added chapter 5.5 to the Porter-Cologne Act, for the purpose of adopting the necessary federal requirements to ensure it would obtain EPA approval to issue NPDES permits. [§ 13370, subd. (c).] As part of these amendments, the Legislature provided that the state and regional water boards ‘shall, as required or authorized by the [Clean Water Act], issue waste discharge requirements . . . which apply and ensure compliance with all applicable provisions [of the Clean Water Act], together with any more stringent effluent standards or limitations necessary to implement water quality control plans, or for the protection of beneficial uses, or to prevent nuisance.’ [§ 13377.] . . . [S]ection 13374 provides that ‘[t]he term “waste discharge requirements” as referred to in this division is the equivalent of the term “permits” as used in the [Clean Water Act].’ [¶] California subsequently obtained the required approval to issue NPDES permits. [Citations.] Thus, the waste discharge requirements issued by the regional water boards ordinarily also serve as NPDES permits under federal law. [§ 13374.]” (Building Industry Assn. of San Diego County v. State Water Resources Control Bd., supra, 124 Cal.App.4th at p. 875.)

FACTS AND PROCEDURAL BACKGROUND

As noted, Regional Board is one of nine regional water quality control boards created by the Porter-Cologne Act. (§ 13200, subd. (d).) In 1975, it adopted two basin plans, one covering the Santa Clarita River basin and a second covering the Los Angeles River basin. Chapter 9 of the plans, which set forth the policies and guidelines governing the formulation and adoption of a water quality control plan, stated a plan
must include “such water quality objectives as in [the regional board’s] judgment will ensure reasonable protection of beneficial uses . . .,” including “[p]ast, present and probable future beneficial uses[,] [¶] . . . [e]nvironmental characteristics of the area, including quality of water supply[,] [¶] . . . [w]ater quality that could reasonably be achieved[,] [¶] . . . [and] [e]conomic considerations.” In approving Regional Board’s 1975 basin plans, State Board issued a resolution declaring, in part, “the water quality control plans include[] all necessary elements of a water quality control plan in accordance with [s]ections 13241 and 13242 . . . and federal requirements . . . .”
In 1987, Congress extended the Clean Water Act to cover stormwater from “municipal storm sewers,” requiring permits for these discharges 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 . . . State determines appropriate for the control of such pollutants.” (33 U.S.C. § 1342(p)(3)(B)(iii).) The EPA defines storm water to “mean[] storm water runoff, snow melt runoff, and surface runoff and drainage.” (40 C.F.R. § 122.26(b)(13) (2010).)
Regional Board issued a permit in 1990, described as an MS4, naming County of Los Angeles and the incorporated cities located within the county as permittees. BILDF’s members were also subjected to storm water and urban runoff permits related to construction activity.
In 1994, Regional Board conducted a review of the basin plans, and consolidated the two original plans into a single one, revising it to cover storm water and urban runoff. Although the 1994 amendment implemented a change of policy towards using a watershed-based water quality control plan, a staff report stated “[m]ost of the water quality objectives are not being changed from the existing Basin Plan[].” (Underscoring omitted.)
The revised plan’s chapter on water quality objectives cited “California Water Code []§13241[]” as “specif[ying] that each Regional Water Quality Control Board shall establish water quality objectives,” which the plan defined “as ‘the allowable limits or levels of water quality constituents or characteristics which are established for the reasonable protection of beneficial uses of water or the prevention of nuisance within a specific area.’” Concerning storm water and urban runoff, the 1994 plan identified and proposed to “implement[] . . . [b]est [m]anagement [p]ractices.” State Board approved the 1994 update of the basin plan.
In 1996, Regional Board issued a renewal of the MS4 permit for Los Angeles County and the cities within it. The permit’s findings acknowledged the 1994 basin plan’s shift to a watershed management approach described as “provid[ing] a comprehensive and integrated strategy towards water resource protection, enhancement, and restoration while balancing economic and environmental impacts within a hydrologically defined drainage basin,” and “emphasize[ing] cooperative relationships between regulatory agencies, the regulated community, . . . and other stakeholders in the watershed to achieve the greatest environmental improvements with the resources available.” The permit also focused on the use of best management practices to minimize pollution from storm water and urban runoff.
On December 13, 2001, Regional Board again renewed the MS4 permit for plaintiff cities. The permit contained several pages of findings, including the following: (1) In 1999, the EPA [Environmental Protection Agency] “entered into a consent decree with [several environmental groups] . . . under which the Regional Board must adopt all TMDLs for the Los Angeles Region within 13 years . . . .” “This permit incorporates a provision to implement and enforce approved load a[l]locations for municipal storm water discharges and requires amending the [Stormwater Quality Management Plan] after pollutants loads have been allocated and approved”; (2) the EPA “established numeric criteria for priority toxic pollutants for the State of California (California Toxics Rule (CTR))” and thereafter, “[t]he State Board adopted” both a policy “requir[ing] that discharges comply with TMDL-derived load allocations as soon as possible but no later than 20 years from the [policy’s] effective date,” plus “a revised Water Quality Control Plan for Ocean Waters of California” that “contains water quality objectives which apply to all discharges to the coastal waters of California”; (3) in September 2001, “Regional Board . . . adopted amendments to the Basin Plan, to incorporate TMDLs for trash in the Los Angeles River . . . and Ballona Creek” and stated it had “considered the requirements of [section] 13263 and [section] 13241, and applicable plans, policies, rules, and regulations in developing these waste discharge requirements.” The permit also contained provisions describing the duties of “[p]ermittees subject to the forthcoming “trash TMDL.”
In 2002, Regional Board approved an amendment to the basin plan’s
water quality objectives concerning bacteria levels in water bodies designated for recreational use. The resolution approving this change found “[t]he Federal Clean Water Act . . . requires . . . []Regional Board[] to develop water quality objectives which are sufficient to protect beneficial uses designated for each water body . . . within its region” “[t]he current Basin Plan contains . . . bacteria objectives to protect waters designated for water contact recreation based on recommendations made by the U.S. EPA in 1976”; the amendment “is based on more recent epidemiological studies and research on the most appropriate bacterial indicators”; “[b]ased on these epidemiological studies, . . . the
U.S. EPA revised its recommended bacteria criteria for waters designated for water contact recreation,” plus made a “commitment” “to promulgate the [revised] criteria
with the goal of assuring that the . . . criteria apply” if “‘a State does not amend its water quality standards to include the [revised] criteria,” and “EPA’s . . . bacteria criteria [plus] the bacteria standards contained in the California Code of Regulations . . . represent
the best science available.” The resolution further noted the amendment “was developed in accordance with section 13241 of the Porter-Cologne . . . Act,” and “Regional
Board . . . considered the costs of implementing the amendment, and f[ound] these costs to be a reasonable burden relative to the environmental benefits.”
In 2004, Regional Board conducted a triennial review of the basin plan. Representatives of cities, public works and sanitation districts, and the construction industry responded to requests for public input.
One letter, from an employee of plaintiff City of Signal Hill, contained the following comments: “The current Basin Plan has not been comprehensively updated since 1994. The Regional Board has relied upon a ‘patchwork’ of amendments, which bear no relationship to the whole document. . . . We believe that a comprehensive update of the Basin Plan under the 2004 Triennial Review is necessary since much has changed in the regulatory environment, [i]ncluding EPA entering into the Consent Decree in 1998 and the Amended Consent Decree in 1999. [¶] There have been significant changes to the 303(d) [L]ist, expanding the list of water bodies and constituents to be regulated. . . . Further, the regulatory framework is significantly altered with EPA’s adoption of the California Toxic Rule and the apparent decision of the Regional Board, in the Metals TMDL for the Los Angeles River, to apply these standards unreasonably to storm[]water. [¶] Finally, the Basin Plan’s water quality objectives were not developed based on ‘past, present, and probable future beneficial uses,’ as required under the Water Code, but instead, appear[] to have been developed and based on ‘potential’ beneficial uses.”
Another letter from employees of other county and city agencies and construction industry organizations requested the 2004 review develop “protocols . . . to ensure that existing and future Basin Plan water quality standards are consistently and substantively assessed in accordance with [the] Porter-Cologne [Act] [s]ection[s] 13000 and . . . 13241 factors,” and stated “[c]lear, rational criteria should be developed for creating and applying beneficial use designations, including the revision of current Basin Plan ‘potential’ use designations.”
In March 2005, after several public meetings, Regional Board prepared a 66-page responsiveness summary to comments received from stakeholders and issued a resolution approving a list of 20 basin planning issues to be addressed during the following three years. It declined to revise or amend the basin plan or eliminate its application to potential beneficial uses of the water bodies covered by the plan.
Plaintiffs filed this action on December 9, 2005. The petition alleges eight causes of action, alternatively seeking issuance of a writ of mandate, plus declaratory
and injunctive relief as to four purported defects. The first and second counts alleged defendants “failed to hold a public hearing for the purpose of reviewing applicable water quality standards/objectives, and where appropriate, modifying and revising such water quality standards/objectives” during the Triennial Review “contrary to law . . . .” The third and fourth counts sought the same relief based on defendants’ alleged failure
“to correct deficiencies, defects and improperly . . . adopted, maintained and
applied . . . standards/objectives . . . based on ‘potential’ beneficial use designations, as opposed to existing uses, uses to be made of the waters, or probable future beneficial uses.” The fifth and sixth causes of action sought the same relief, alleging the Triennial Review failed to comply with section 13000 and 13241. Finally, the seventh and eighth counts alleged the “water quality standards/objectives contain numerous beneficial ‘potential’ . . . use designations,” and thus “were developed and adopted, and are being maintained and applied without compliance with the requirements of . . . [sections]
13000 . . . and 13241. . . .”
Defendants unsuccessfully demurred and moved to strike the petition, in part arguing the applicable statute of limitations barred plaintiffs’ claims. After defendants answered the petition, the court conducted a hearing on it. The court issued a notice of ruling that granted the writ on all causes of action “as to water quality [s]tandards and objectives of the [b]asin [p]lan as those [s]tandards and objectives affect storm water discharges and urban runoff.” (Underscoring omitted.)
Initially, the court rejected defendants’ claims plaintiffs’ action was barred by the statute of limitations, res judicata or collateral estoppel. It also held plaintiffs were not barred by their failure to file administrative challenges to the 1990 and 1996 MS4 permits issued by Regional Board, finding it is “the adoption of the TMDLs followed by their incorporation into the NPDES permit that triggers the application of the [s]tandards.”
On the merits, the court held defendants erred both by considering “‘potential’ future uses” and by applying “[t]he [s]tandards . . . without appropriate consideration of the 13241/13000 factors.” As to the latter ruling, the court stated “[t]here is no substantial evidence showing that the [b]oards considered the 13241/13000 factors before applying the [s]tandards to storm water in the 1975 [p]lan [a]doption, the 1994 [a]mendment, or the 2002 [b]acterial [o]bjectives.” Finally, the court held “[t]he 2004 [triennial review] was the appropriate vehicle at the appropriate time for the [b]oard to consider the . . . factors. . . .”
Before the court entered judgment, intervenors successfully sought to intervene in the case. The initial judgment directed issuance of a writ of mandate that, in part, required boards “to cease and desist, and suspend all activities relating to the implementation, application, and/or enforcement in the [b]asin [p]lan” to either “achieve ‘potential’ beneficial uses” or to apply water quality objectives “whether through TMDLs or other [b]asin [p]lan amendments or regulations, or through NPDES permits . . . until such time as [the boards] have reviewed and, where appropriate, revised the[s]tandards in light of the factors and requirements provided under . . . sections 13241 and 13000 . . . .”
Defendants and intervenors moved for a new trial and intervenors also moved to vacate the judgment. The trial court denied the new trial motions but, expressing “concern[] about [the] unintended consequences which . . . may result from immediate halting of all implementation, application and/or enforcement of the [s]tandards in the [b]asin [p]lan as applied . . . to [s]torm[]water,” exercised its authority under Code of Civil Procedure section 662 to “vacate[] the [original] judgment and writ” and enter “a new judgment . . . that follows the ‘remand without vacatur’ procedure,” thereby permitting defendants “to use the [s]tandards pending review . . . .”
The final judgment as described above and a writ of mandate were entered November 10, 2008.


TO BE CONTINUED AS PART II….

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