The State Water Resources Control Board (the “State Board”) has effectively imposed a moratorium on new construction within the Los Angeles region, in response to the Orange County Superior Court’s recent ruling in the Arcadia II litigation. The State Board last week published two memoranda interpreting a writ of mandate issued on July 2 in the Arcadia II case, which involves a challenge to the storm water quality standards set forth in the Basin Plan for the Los Angeles Region. According to the memoranda, the writ requires the State Board to stop processing enrollments under the statewide Construction General Storm Water Permit. This interpretation will halt virtually all new construction projects that have not already obtained storm water permit coverage. The State Board also has interpreted the writ as prohibiting any approvals or other actions to implement new TMDLs for receiving waters in the Los Angeles Region.

Court: Triennial Review Must Analyze Reasonableness of Water Quality Standards

The Arcadia II case, City of Arcadia v. State Water Resources Control Board, No. 06CC02974 (Orange Co. Sup. Ct.), was brought by a group of Southern California cities and building industry groups that opposed the application of numeric water quality standards to storm water runoff. The plaintiffs argued that the water quality standards contained in the Basin Plan were not intended to apply to storm water and that the Los Angeles Regional Water Quality Control Board (the “Los Angeles Regional Board”) had implemented the standards without reviewing their reasonableness, as required by state law. According to the plaintiffs, the Los Angeles Regional Board should have conducted this analysis during its 2004 Triennial Review of the Basin Plan (the “2004 Review”). The Regional Boards, however, have long contended that the Triennial Review process is not the proper venue for evaluating the reasonableness of water quality standards.

The court agreed with the plaintiffs, finding that the 2004 Review should have included consideration of the factors set forth in Water Code sections 13241 and 13000, including the practicability and economic impact of the water quality standards. The court ordered the water boards to set aside the order concluding the 2004 Review. During the reopened 2004 Review, or during the next scheduled Triennial Review, the Los Angeles Regional Board must review and revise the Basin Plan’s storm water quality standards in light of the statutory factors. Until that review is complete, the water boards are ordered to “suspend all activities relating to the implementation, application, and/or enforcement of the [water quality standards] in the Basin Plan, as applied or to be applied to Stormwater, whether through TMDLs or other Basin Plan amendments or regulations, or through NPDES permits, water quality policies or otherwise . . ..”

The court also found that the Los Angeles Regional Board’s practice of basing water quality standards on “potential” beneficial uses is unlawful. Water Code section 13241(a) allows the consideration of “probable future beneficial uses” when establishing water quality standards, and section 13000 requires a consideration of the “demands being made and to be made” on state waters. The court ordered the Regional Board to cease enforcement of all standards based on potential beneficial uses and directed the Board to remove all such standards from the Basin Plan.

Board: Enrolling New Projects Under General Storm Water Permits Would Violate the Writ

In a memorandum dated July 16, the State Board’s chief counsel told the Board’s executive director that the State Board “must immediately cease enrollments for dischargers within the geographic region of the [Los Angeles Regional Board] who file notices of intent to comply” under the Construction General Storm Water Permit or the Industrial General Storm Water Permit. According to the memorandum, the storm water general permits “contain provisions requiring compliance with applicable water quality standards. . . . Further, the enrollment of a project or facility [under one of the general permits] will require the facility to develop a storm water pollution prevention plan to implement water quality standards in the Los Angeles region’s Basin Plan . . .. Enrollment of new dischargers . . . for coverage under these permits would, therefore, constitute implementing and applying the water quality standards contained in the Basin Plan to storm water [and] would violate the terms of the writ.” Any construction project which disturbs more than one acre cannot proceed without obtaining coverage under the General Permit or seeking an individual permit to discharge storm water.

In a separate memorandum issued on the same day, the chief counsel concluded that the State Board “may not act on any of Los Angeles Region’s amendments to its [Basin Plan], including TMDLs, which implement or apply water quality standards to storm water.” According to the memorandum, the writ affects five TMDLs for which the approval process is currently underway. The prohibitions contained in the writ of mandate will remain in effect until the water boards comply with the writ or the prohibitions are modified by the court.

Decision Likely To Produce Changes Statewide

The Arcadia II decision is expected to have repercussions statewide, as other Regional Boards most likely will be required to assess their water quality standards in light of the statutory factors during their own Triennial Reviews. The San Francisco Regional Board is just beginning the Triennial Review process for its Basin Plan, and observers are watching the Board closely to see how it addresses the issue.