Responding to an order from the Orange County Superior Court, the State Water Resources Control Board (the “State Board”) has lifted a two-week-old moratorium on new construction in the Los Angeles region. The State Board announced on Friday that it would resume processing new enrollments under the statewide NPDES Construction General Storm Water Permit (the “Construction General Permit”) and other statewide NPDES permits. The State Board had suspended such enrollments just two weeks earlier, in response to a writ of mandate issued by the court in the Arcadia II litigation. However, the court clarified on Friday that the writ does allow the State Board to implement the terms of NPDES permits, so long as those terms are not used to enforce numeric water quality standards.

Decision On Numeric Standards Did Not Implicate All NPDES Permit Terms, Court Says

On July 2, the Orange County Superior Court issued a writ of mandate that ordered the water boards to “suspend the . . . implementation, application, and/or enforcement” of numeric water quality standards for the Los Angeles region, “whether through TMDLs or . . . NPDES permits, water quality policies or otherwise . . ..” City of Arcadia v. State Water Resources Control Board, No. 06CC02974 (Orange Co. Sup. Ct. July 2, 2008). In response, the State Board issued a memorandum on July 16, stating that the writ required it to suspend processing of new enrollments under the Construction General Permit for projects located within the LA region. The State Board reasoned that NPDES permits “contain provisions requiring compliance with applicable water quality standards.” Enrollment of new dischargers for coverage under the permits therefore “would violate the terms of the writ.” Any construction project which disturbs more than one acre cannot proceed without obtaining coverage under the Construction General Permit or seeking an individual permit to discharge storm water. Thus, the Board’s decision to suspend enrollments under the permits amounted to a moratorium on new construction in the LA Region.

On Friday, the court issued a new order, interpreting its earlier writ. According to the court, nothing in the writ “prevent[s] any action to implement, apply or enforce any term or provision in any Stormwater NPDES permit . . . except to the extent that any such term or provision is used or designed to implement or enforce (i) any element of a TMDL, or (ii) any numeric limit that may be included in any such NPDES permit as a means of enforcing a Standard outside of the TMDL process.”

The court’s interpretation clears the way for the State Board to resume processing of enrollments under the Construction General Permit for projects located within the LA region. In a memorandum issued Friday, the State Board’s Office of Chief Counsel directed staff to “resume processing Notices of Intent (NOIs) for the Los Angeles region,” with “[h]ighest priority . . . given to NOIs that may have been delayed because of the court’s writ and judgment.”

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