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Reprinted with the permission of LexisNexis. 124 BUILDING INDUSTRY ASSOCIATION OF v. STATE WATER RESOURCES CONTROL BOARD et al., Defendants and Respondents. CERTIFIED FOR PARTIAL PUBLICATION[1] COURT OF APPEAL, D042385 COUNSEL Latham & Watkins, David L. Mulliken, Eric M. Katz, Paul
N. Singarella, Kelly E. Richardson and Daniel P. Brunton, for Plaintiffs and
Appellants. Bill Lockyer, Attorney General, Mary Hackenbracht, Assistant
Attorney General, Carol A. Squire, David Robinson and Deborah Fletcher, Deputy
Attorneys General, for Defendants and Respondents. David S. Beckman, Heather L. Hoecherl and Marco Gonzalez, for Intervener and Respondent Law Offices of Rory Wicks and Rory R. Wicks, for Surfrider
Foundation, Waterkeeper Alliance, The Ocean Conservancy, Heal the Bay,
Environmental Defense Center, Santa Monica BayKeeper, Orange County
CoastKeeper, Ventura CoastKeeper, Environmental Health Coalition, CalBeach
Advocates, San Diego Audubon Society, Endangered Habitats League, and Sierra
Club, Amici Curiae on behalf of Defendants and Respondents, and Interveners and
Respondents. HALLER, J. This case concerns the environmental regulation of municipal
storm sewers that carry excess water runoff to lakes, lagoons, rivers, bays,
and the ocean. The waters flowing
through these sewer systems have accumulated numerous harmful pollutants that
are then discharged into the water body without receiving any treatment. To protect against the resulting water quality
impairment, federal and state laws impose regulatory controls on storm sewer
discharges. In particular,
municipalities and other public entities are required to obtain, and comply
with, a regulatory permit limiting the quantity and quality of water runoff
that can be discharged from these storm sewer systems. In this case, the California Regional Water Control Board,
San Diego Region, (Regional Water Board) conducted numerous public hearings and
then issued a comprehensive municipal storm sewer permit governing 19 local
public entities. Although these entities
did not bring an administrative challenge to the permit, one business
organization, the Building Industry Association of San Diego County (Building
Industry), filed an administrative appeal with the State Water Resources
Control Board (State Water Board). After
making some modifications to the permit, the State Water Board denied the
appeal. Building Industry then
petitioned for a writ of mandate in the superior court, asserting numerous claims,
including that the permit violates state and federal law because the permit
provisions are too stringent and impossible to satisfy. Three environmental groups intervened as
defendants in the action. After a
hearing, the trial court found Building Industry failed to prove its claims and
entered judgment in favor of the administrative agencies (the Water Boards) and
the intervener environmental groups. On appeal, Building Industry's main contention is that the
regulatory permit violates federal law because it allows the Water Boards to
impose municipal storm sewer control measures more stringent than a federal
standard known as "maximum extent practicable." (See 33 U.S.C. § 1342(p)(3)(B)(iii).)[2] In the published portion of this opinion, we
reject this contention, and conclude the Water Boards had the authority to
include a permit provision requiring compliance with state water quality
standards. In the unpublished portion of
the opinion, we find Building Industry's additional contentions to be without
merit. We affirm the judgment. RELEVANT
BACKGROUND INFORMATION I. Summary of Relevant Clean Water Act
Provisions Before setting forth the factual background of this
particular case, it is helpful to summarize the federal and state statutory
schemes for regulating municipal storm sewer discharges.[3] A. Federal Statutory Scheme When the United States Congress first enacted the Federal
Water Pollution Control Act in 1948, the Congress relied primarily on state and
local enforcement efforts to remedy water pollution problems. (Middlesex Cty. Sewerage Auth. v. Sea
Clammers (1981) 453 The Clean Water Act employs the basic strategy of
prohibiting pollutant emissions from "point sources"[4]
unless the party discharging the pollutants obtains a permit, known as an NPDES[5]
permit. (See EPA v. State Water
Resources Control Board, supra, 426 U.S. at p. 205.) It is "unlawful for any person to
discharge a pollutant without obtaining a permit and complying with its
terms." (Ibid.;
§ 1311(a); see Costle, supra, 568 F.2d at p. 1375.) An NPDES permit is issued by the United
States Environmental Protection Agency (EPA) or by a state that has a
federally-approved water quality program.
(§ 1342(a), (b); EPA v. State Water Resources Control Board,
supra, 426 Under the Clean Water Act, the proper scope of the controls
in an NPDES permit depends on the applicable state water quality standards for
the affected water bodies. (See Communities
for a Better Environment v. State Water Resources Control Bd. (2003) 109
Cal.App.4th 1089, 1092.) Each state is
required to develop water quality standards that establish "'the desired
condition of a waterway.'" (Ibid.) A water quality standard for any given water
segment has two components: (1) the
designated beneficial uses of the water body; and (2) the water quality
criteria sufficient to protect those uses.
(Ibid.) As enacted in
1972, the Clean Water Act mandated that an NPDES permit require compliance with
state water quality standards and that this goal be met by setting forth a
specific "effluent limitation," which is a restriction on the amount
of pollutants that may be discharged at the point source. (§§ 1311, 1362(11).) Shortly after the 1972 legislation, the EPA promulgated
regulations exempting most municipal storm sewers from the NPDES permit requirements. (Costle, supra, 568 F.2d at p. 1372;
see Defenders of Wildlife v. Browner (9th Cir. 1999) 191 F.3d 1159, 1163
(Defenders of Wildlife).) When
environmental groups challenged this exemption in federal court, the Ninth
Circuit held a storm sewer is a point source and the EPA did not have the
authority to exempt categories of point sources from the Clean Water Act's
NPDES permit requirements. (Costle,
supra, 568 F.2d at pp. 1374-1383.)
The Costle court rejected the EPA's argument that effluent-based
storm sewer regulation was administratively infeasible because of the variable
nature of storm water pollution and the number of affected storm sewers
throughout the country. (Id. at
pp. 1377-1382.) Although the court
acknowledged the practical problems relating to storm sewer regulation, the
court found the EPA had the flexibility under the Clean Water Act to design
regulations that would overcome these problems.
(Id. at pp. 1379-1383.) During the next 15 years, the EPA made numerous attempts to reconcile
the statutory requirement of point source regulation with the practical problem
of regulating possibly millions of diverse point source discharges of storm
water. (Defenders of Wildlife, supra,
191 F.3d at p. 1163; see Gallagher, Clean Water Act in Environmental Law
Handbook (Sullivan, edit., 2003) p. 300 (Environmental Law Handbook); Eisen, Toward
a Sustainable Urbanism: Lessons from Federal Regulation of Urban Stormwater
Runoff (1995) 48 Wash. U. J. Urb. & Contemp. L. 1, 40-41 (Regulation of
Urban Stormwater Runoff).) Eventually, in 1987, Congress amended the Clean Water Act to
add provisions that specifically concerned NPDES permit requirements for storm
sewer discharges. (§ 1342(p); see Defenders
of Wildlife, supra, 191 F.3d at p. 1163; Natural Resources Defense
Counsel v. U.S. E.P.A. (1992) 966 F.2d 1292, 1296.) In these amendments, enacted as part of the
Water Quality Act of 1987, Congress distinguished between industrial and
municipal storm water discharges. With
respect to industrial storm water discharges, Congress provided that
NPDES permits "shall meet all applicable provisions of this section and
section 1311 [requiring the EPA to establish effluent limitations under
specific timetables] . . . ." (§ 1342 (p)(3)(A).) With respect to municipal storm water
discharges, Congress clarified that the EPA had the authority to fashion NPDES
permit requirements to meet water quality standards without specific numerical
effluent limits and instead to impose "controls to reduce the discharge of
pollutants to the maximum extent
practicable . . . ."
(§ 1342(p)(3)(B)(iii); see Defenders of Wildlife, supra, 191
F.3d at p. 1163.) Because the statutory
language pertaining to municipal storm sewers is at the center of this appeal,
we quote the relevant portion of the statute in full: "(B)
Permits for discharges from municipal storm sewers— “(i) may be issued on a system- or
jurisdiction-wide basis; “(ii) shall include a requirement to effectively
prohibit non-stormwater discharges into the storm sewers; and “(iii) 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."
(§ 1342(p)(3)(B).) To ensure this scheme would be administratively workable,
Congress placed a moratorium on many new types of required stormwater permits
until 1994 (§ 1342(p)(1)), and created a phased approach to necessary
municipal stormwater permitting depending on the size of the municipality
(§ 1342(p)(2)(D)). (See Environmental
Defense Center, Inc. v. B. State Statutory Scheme Three years before the 1972 Clean Water Act, the California
Legislature enacted its own water quality protection legislation, the
Porter-Cologne Water Quality Control Act (Porter-Cologne Act), seeking to
"attain the highest water quality which is
reasonable . . . ."
(Wat. Code, § 13000.) The
Porter-Cologne Act created the State Water Board to formulate statewide water
quality policy and established nine regional boards to prepare water quality
plans (known as basin plans) and issue permits governing the discharge of
waste. (Wat. Code, §§ 13100, 13140,
13200, 13201, 13240, 13241, 13243.) The
Porter-Cologne Act identified these permits as "waste discharge
requirements," and provided that the waste discharge requirements must
mandate compliance with the applicable regional water quality control
plan. (Wat. Code, §§ 13263, subd.
(a), 13377, 13374.) Shortly after Congress enacted the Clean Water Act in 1972,
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.
(Wat. Code, § 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."
(Wat. Code, § 13377.) Water
Code section 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]." II. The NPDES Permit at Issue in this Case Under its delegated authority and after numerous public
hearings, in February 2001 the Regional Water Board issued a 52-page NPDES
permit and Waste Discharge Requirements (the Permit) governing municipal storm
sewers owned by San Diego County, the San Diego Unified Port District, and 18
San Diego-area cities (collectively "Municipalities").[6] The first 10 pages of the Permit contain the
Regional Water Board's detailed factual findings. These findings describe the manner in which
San Diego-area water runoff absorbs numerous harmful pollutants and then is
conveyed by municipal storm sewers into local waters without any
treatment. The findings state that these
storm sewer discharges are a leading cause of water quality impairment in the Based on these factual findings, the Regional Water Board
included in the Permit several overall prohibitions applicable to municipal
storm sewer discharges. Of critical
importance to this appeal, these prohibitions concern two categories of
restrictions. First, the Municipalities
are prohibited from discharging those pollutants "which have not been
reduced to the maximum extent practicable . . . ."[7] (Italics added). Second, the Municipalities are prohibited
from discharging pollutants "which cause or contribute to exceedances of
receiving water quality objectives . . . " and/or that
"cause or contribute to the violation of water quality
standards . . . ."
This second category of restrictions (referred to in this opinion as the
"Water Quality Standards provisions") essentially provide that a
Municipality may not discharge pollutants if those pollutants would cause the
receiving water body to exceed the applicable water quality standard. It is these latter restrictions that are
challenged by Building Industry in this appeal. Part C of the Permit (as amended) qualifies the Water
Quality Standards provisions by detailing a procedure for enforcing violations
of those standards through a step-by-step process of "timely
implementation of control measures . . . ," known as
an "iterative" process. Under
this procedure, when a Municipality "caus[es] or contribute[s] to an
exceedance of an applicable water quality standard," the Municipality must
prepare a report documenting the violation and describing a process for
improvement and prevention of further violations. The Municipality and the Regional Water Board
must then work together at improving methods and monitoring progress to achieve
compliance. But the final provision of
Part C states that "Nothing in this section shall prevent the [Regional Water
Board] from enforcing any provision of this Order while the [Municipality]
prepares and implements the above report."
In addition to these broad prohibitions and enforcement
provisions, the Permit requires the Municipalities to implement, or to require
businesses and residents to implement, various pollution control measures
referred to as "best management practices," which reflect techniques
for preventing, slowing, retaining or absorbing pollutants produced by
stormwater runoff. These best management
practices include structural controls that minimize contact between pollutants
and flows, and non-structural controls such as educational and public outreach
programs. The Permit also requires the
Municipalities to regulate discharges associated with new development and
redevelopment and to ensure a completed project will not result in
significantly increased discharges of pollution from storm water runoff. After the Regional Water Board
issued the Permit, the Building Industry, an organization representing the
interests of numerous construction-related businesses, filed an administrative
challenge with the State Water Board.
Although none of the Municipalities joined in the administrative appeal,
Building Industry claimed its own independent standing based on its assertion
that the Permit would impose indirect obligations on the regional building
community. (See Wat. Code, § 13320
[permitting any "aggrieved person" to challenge Regional Water Board
action].) Among its numerous
contentions, Building Industry argued that the Water Quality Standards
provisions in the Permit require strict compliance with state water quality
standards beyond what is "practicable" and therefore violate federal
law. In November 2001, the State Water Board issued a
written decision rejecting Building Industry's appeal after making certain
modifications to the Permit. (State of Building Industry then brought a superior court action
against the Water Boards, challenging the Regional Board's issuance of the
Permit and the State Water Board's denial of Building Industry's administrative
challenge.[8] Building Industry asserted numerous legal
claims, including that the Water Boards:
(1) violated the Clean Water Act by imposing a standard greater
than the "maximum extent practicable" standard; (2) violated state
law by failing to consider various statutory factors before issuing the Permit;
(3) violated the California Environmental Quality Act (CEQA) by failing to
prepare an environmental impact report ( Three environmental organizations, San Diego BayKeeper,
National Resources Defense Council, and California CoastKeeper (collectively
Environmental Organizations), requested permission to file a complaint in
intervention, seeking to uphold the Permit and asserting a direct and
substantial independent interest in the subject of the action. Over Building Industry's objections, the
trial court permitted these organizations to file the complaint and enter the
action as parties-interveners. After reviewing the lengthy administrative record and the
parties' briefs, and conducting an oral hearing, the superior court ruled in
favor of the Water Boards and Environmental Organizations (collectively
respondents). Applying the independent
judgment test, the court found Building Industry failed to meet its burden to
establish the State Water Board abused its discretion in approving the Permit
or that the administrative findings are contrary to the weight of the evidence. In particular, the court found Building
Industry failed to establish the Permit requirements were "impracticable
under federal law or unreasonable under state law," and noted that there
was evidence showing the Regional Water Board considered many practical aspects
of the regulatory controls before issuing the Permit. Rejecting Building Industry's legal
arguments, the court also stated that under federal law the Water Boards had
the discretion "to require strict compliance with water quality
standards" or "to require less than strict compliance with water
quality standards." The court also
sustained several of respondents' evidentiary objections, including to
documents relating to the legislative history of the Clean Water Act. Building Industry appeals, challenging the superior court's
determination that the Permit did not violate the federal Clean Water Act. In its appeal, Building Industry does not
reassert its claim that the Permit violates state law, except for its
contentions pertaining to CEQA. DISCUSSION I. Standard of Review "Any party aggrieved by a final
decision . . . of a regional board for which the state
board denies review may obtain review of the
decision . . . by filing [a superior court] petition for
writ of mandate not later than 30 days from the date on which the state board
denies review." (Wat. Code,
§ 13330, subd. (b).) Code of Civil
Procedure section 1094.5 governs the proceedings, and the superior court must
exercise its independent judgment in examining the evidence and resolving
factual disputes. (Wat. Code,
§ 13330, subd. (d).) "In
exercising its independent judgment, a trial court must afford a strong
presumption of correctness concerning the administrative findings, and the
party challenging the administrative decision bears the burden of convincing
the court that the administrative findings are contrary to the weight of the
evidence." (Fukuda v. City of
Angels (1999) 20 Cal.4th 805, 817.) In reviewing the trial court's factual determinations on the
administrative record, a Court of Appeal applies a substantial evidence
standard. (Fukuda v. City of Angels,
supra, 20 Cal.4th at p. 824.)
However, in reviewing the trial court's legal determinations, an
appellate court conducts a de novo review.
(See interpretation of an applicable statute.[9] (Ibid.) II. Water Boards' Authority to
Enforce Water Quality Standards in NPDES Permit Building Industry's main appellate contention is very
narrow. Building Industry argues that
two provisions in the Permit (the Water Quality Standards provisions) violate
federal law because they prohibit the Municipalities from discharging runoff
from storm sewers if the discharge would cause a water body to exceed the
applicable water quality standard established under state law.[10] Building Industry contends that under federal
law the "maximum extent practicable" standard is the
"exclusive" measure that may be applied to municipal storm sewer
discharges and a regulatory agency may not require a Municipality to comply
with a state water quality standard if the required controls exceed a
"maximum extent practicable" standard. In the following discussion, we first reject respondents'
contentions that Building Industry waived these arguments by failing to raise a
substantial evidence challenge to the court's factual findings and/or to reassert its state
law challenges on appeal. We then focus
on the portion of the Clean Water Act (§ 1342(p)(3)(B)(iii)) that Building
Industry contends is violated by the challenged Permit provisions. On our de novo review of this legal issue, we
conclude the Permit's Water Quality Standards provisions are proper under
federal law, and Building Industry's legal challenges are unsupported by the
applicable statutory language, legislative purpose, and legislative history. A. Building Industry Did Not Waive the Legal
Argument Respondents (the Water Boards and Environmental Organizations)
initially argue that Building Industry waived its right to challenge the
Permit's consistency with the maximum extent practicable standard because
Building Industry did not challenge the trial court's factual findings
that Building Industry failed to prove any of the Permit requirements were
"impracticable" or "unreasonable." In taking this position, respondents misconstrue the nature
of Building Industry's appellate contention challenging the Water Quality
Standards provisions. Building
Industry's contention concerns the scope of the authority given to the Regional
Water Board under the Permit terms.
Specifically, Building Industry argues that the Regional Water Board
does not have the authority to require the Municipalities to adhere to the
applicable water quality standards because federal law provides that the
"maximum extent practicable" standard is the exclusive standard that
may be applied to storm sewer regulation.
This argument—concerning the proper scope of a regulatory agency's
authority—presents a purely legal issue, and is not dependent on the court's
factual findings regarding the practicality of the specific regulatory controls
identified in the Permit. Respondents alternatively contend that Building Industry
waived its right to challenge the propriety of the Water Quality Standards
provisions under federal law because the trial court found the provisions were
valid under state law and Building Industry failed to reassert its state law
challenges on appeal. Under the
particular circumstances of this case, we conclude Building Industry did not
waive its rights to challenge the Permit under federal law. Although it is well settled that the Clean Water Act
authorizes states to impose water quality controls that are more stringent than
are required under federal law (§ 1370; see PUD No. 1 of Jefferson Cty.
v. Washington Dept. of Ecology (1994) 511 U.S. 700, 705; Northwest
Environmental Advocates v. Portland (9th Cir. 1995) 56 F.3d 979, 989), and
California law specifically allows the imposition of controls more stringent
than federal law (Wat. Code, § 13377), the Water Boards made a tactical
decision in the superior court to assert the Permit's validity based solely on
federal law, and repeatedly made clear they were not seeking to justify the
Permit requirements based on the Boards' independent authority to act under
state law. On appeal, the Water Boards
continue to rely primarily on federal law to uphold the Permit requirements,
and their assertions that we may decide the matter based solely on state law
are in the nature of asides rather than direct arguments. On this record, it would be improper to rely
solely on state law to uphold the challenged Permit provisions. B. The Water Quality Standards Requirement
Does Not Violate Federal Law We now turn to Building Industry's main substantive
contention on appeal—that the Permit's Water Quality Standards provisions (fn.
10, ante) violate federal law.
Building Industry's contention rests on its interpretation of the 1987
Water Quality Act amendments containing NPDES requirements for municipal storm
sewers. The portion of the relevant
statute reads: "(B) Permits for
discharges from municipal storm sewers . . . [¶] . . . [¶]
(iii) 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 [EPA] Administrator or the State determines appropriate for
the control of such pollutants."
(§ 1342(p)(3)(B)(iii), italics added.) 1. Statutory
Language Focusing on the first 14 words of subdivision (iii),
Building Industry contends the statute means that the maximum extent
practicable standard sets the upper limit on the type of control that can be
used in an NPDES permit, and that each of the phrases following the word "including"
identify examples of "maximum extent practicable" controls. (§ 1342(p)(3)(B)(iii), italics
added.) Building Industry thus reads the
final "and such other provisions" clause as providing the EPA with
the authority only to include other types of "maximum extent
practicable" controls in an NPDES storm sewer permit. Respondents counter that the term "including"
refers only to the three identified types of pollution control procedures—(1)
"management practices"; (2) "control techniques"; and (3)
"system, design and engineering methods"—and that the last phrase,
"and such other provisions as the Administrator or the State determines
appropriate for the control of such pollutants," provides the
EPA (or the approved state regulatory agency) the specific authority to go
beyond the maximum extent practicable standard to impose effluent limitations
or water-quality based standards in an NPDES permit. In support, respondents argue that because
the word "system" in section 1342(p)(3)(B)(iii) is singular, it
necessarily follows from parallel-construction grammar principles that the word
"system" is part of the phrase "system, design and engineering
methods" rather than the phrase "control techniques and
system." Under this view and given
the absence of a comma after the word "techniques," respondents argue
that the "and such other provisions" clause cannot be fairly read as
restricted by the "maximum extent practicable" phrase, and instead
the "and such other provisions" clause is a separate and distinct
clause that acts as a second direct object to the verb "require" in
the sentence. (§ 1342(p)(3)(B)(iii).) Building Industry responds that respondents' proposed statutory
interpretation is "not logical" because if the "and such other
provisions" phrase is the direct object of the verb "require,"
the sentence would not make sense.
Building Industry states that "permits" do not generally
"require" provisions; they "include" or "contain"
them. As a matter of grammar and word
choice, respondents have the stronger position. The second part of Building Industry's
proposed interpretation—"control techniques and system, design, and
engineering methods"—without a comma after the word "techniques"
does not logically serve as a parallel construct with the "and such other
provisions" clause. Moreover, we
disagree that the "and such other provisions" clause cannot be a
direct object to the word "require."
(§ 1342(p)(3)(B)(iii).)
Although it is not the clearest way of articulating the concept, the
language of section 1342(p)(3)(B)(iii) does communicate the basic principle
that the EPA (and/or a state approved to issue the NPDES permit) retains the
discretion to impose "appropriate" water pollution controls in
addition to those that come within the definition of "'maximum extent
practicable.'" (See Defenders of
Wildlife, supra, 191 F.3d at pp. 1165-1167.) We find unpersuasive Building Industry's
reliance on several statutory interpretation concepts, ejusdem generis,
noscitur a sociis, and expressio unius est exclusion alterius, to
support its narrower statutory construction. 2. Purpose and
History of Section 1342(p)(3)(B)(iii) Further, "[w]hile punctuation and grammar should be considered in interpreting
a statute, neither is controlling unless the
result is in harmony with the clearly expressed intent of the
Legislature." (In re John S.
(2001) 88 Cal.App.4th 1140, 1144, fn. 1; see Estate of Coffee (1941) 19
Cal.2d 248, 251.) If the statutory
language is susceptible to more than one reasonable interpretation, a court
must also "look to a variety of extrinsic aids, including the ostensible
objects to be achieved, the evils to be remedied, the legislative
history, public policy, contemporaneous administrative construction, and the statutory
scheme of which the statute is a part." (Nolan v. City of The legislative purpose underlying the Water Quality Act of
1987, and section 1342(p) in particular, supports that Congress intended to
provide the EPA (or the regulatory agency of an approved state) the discretion
to require compliance with water quality standards in a municipal storm sewer
NPDES permit, particularly where, as here, that compliance will be achieved
primarily through an iterative process. Before section 1342(p) was enacted, the courts had long
recognized that the EPA had the authority to require a party to comply with a
state water quality standard even if that standard had not been translated into
an effluent limitation. (See EPA v.
State Water Resources Control Board, supra, 426 U.S. at p. 205, fn.
12; PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, supra, 511
U.S. at p. 715; Northwest Environmental Advocates v. Portland (9th Cir.
1995) 56 F.3d 979, 987; Natural Resources Defense Counsel v. U.S.E.P.A.
(9th Cir. 1990) 915 F.2d 1314, 1316.)
Specifically, section 1311(b)(1)(C) gave the regulatory agency the
authority to impose "any more stringent limitation including those
necessary to meet water quality standards," and section 1342(a)(2)
provided that "[t]he [EPA] Administrator shall prescribe conditions for
[NPDES] permits to assure compliance" with requirements identified in
section 1342(a)(1), which encompass state water quality standards. The United States Supreme Court explained
that when Congress enacted the 1972 Clean Water Act, it retained "[w]ater
quality standards . . . as a supplementary basis for
effluent limitations, . . . so that numerous point sources
despite individual compliance with effluent limitations, may be further
regulated to prevent water quality from falling below acceptable
levels. . . . "
(EPA v. State Water Resources Control Board, supra, 426
U.S. at p. 205, fn. 12; see also Arkansas v. Oklahoma (1992) 503 U.S.
91, 101.) There is nothing in section 1342(p)(3)(B)(iii)'s statutory
language or legislative history showing that Congress intended to eliminate
this discretion when it amended the Clean Water Act in 1987. To the contrary, Congress added the NPDES
storm sewer requirements to strengthen the Clean Water Act by making its
mandate correspond to the practical realities of municipal storm sewer
regulation. As numerous commentators
have pointed out, although Congress was reacting to the physical differences
between municipal storm water runoff and other pollutant discharges that made
the 1972 legislation's blanket effluent limitations approach impractical and
administratively burdensome, the primary point of the legislation was to address
these administrative problems while giving the administrative bodies the tools
to meet the fundamental goals of the Clean Water Act in the context of
stormwater pollution. (See Regulation of
Urban Stormwater Runoff, supra, at pp. 44-46; Environmental Law
Handbook, supra, at p. 300; Clean Water Act Handbook, supra, at
pp. 62-63.) In the 1987 congressional
debates, the Senators and Representatives emphasized the need to prevent the
widespread and escalating problems resulting from untreated storm water toxic
discharges that were threatening aquatic life and creating conditions dangerous
to human health. (See Remarks of Sen.
Durenberger, 133 Cong. Rec. 1279 (Jan. 14, 1987); Remarks of Sen. Chaffee, 133
Cong. Rec. S738 (daily ed. Jan 14, 1987); Remarks of Rep. Hammerschmidt, 133
Cong. Rec. 986 (Jan. 8, 1987); Remarks of Rep. Roe, 133 Cong. Rec. 1006, 1007
(Jan. 8, 1987); Remarks of Sen. Stafford, 132 Cong. Rec. 32381, 32400 (Oct. 16,
1986).) This legislative history
supports that in identifying a maximum extent practicable standard 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. To support a contrary view, Building Industry relies on
comments by Minnesota Senator David Durenberger during the lengthy
congressional debates on the 1987 Water Quality Act amendments.[11] (132 Cong. Rec. 32400 ( limited the EPA's existing discretion.[12] Building Industry's reliance on comments made by Georgia
Representative James Rowland, who participated in drafting the 1987 Water
Quality Act amendments, is similarly unhelpful.
During a floor debate on the proposed amendments, Representative Rowland
noted that cities have "millions of" stormwater discharge points and
emphasized the devastating financial burden on cities if they were required to
obtain a permit for each of these points.
(133 Cong. Rec. 522 (daily ed. 3.
Interpretations by the EPA and Other Courts Our conclusion that Congress intended section
1342(p)(3)(B)(iii) to provide the regulatory agency with authority to impose
standards stricter than a "maximum extent practicable" standard is
consistent with interpretations by the EPA and the Ninth Circuit. In its final rule promulgated in the Federal
Register, the EPA construed section 1342(p)(3)(B)(iii) as providing the
administrative agency with the authority to impose water-quality standard
controls in an NPDES permit if appropriate under the circumstances. Specifically, the EPA stated this statutory
provision requires "controls to reduce the discharge of pollutants to the
maximum extent practicable, and where necessary water quality-based controls . . . ." (55 The only other court that has interpreted the "such
other provisions" language of section 1342(p)(3)(B)(iii) has reached a
similar conclusion. (Defenders of
Wildlife, supra, 191 F.3d at pp. 1166-1167.) In Defenders of Wildlife,
environmental organizations brought an action against the EPA, challenging
provisions in an NPDES permit requiring several But in a separate section of the opinion, the Defenders
of Wildlife court additionally rejected the reverse argument made by the
affected municipalities (who were the interveners in the action) that "the
EPA may not, under the [Clean Water Act], require strict compliance with state
water-quality standards, through numerical limits or otherwise." (Defenders of Wildlife, supra,
191 F.3d at p. 1166.) The court
stated: "Although Congress did not
require municipal storm-sewer discharges to comply strictly with [numerical
effluent limitations], § 1342(p)(3)(B)(iii) states that '[p]ermits for
discharges from municipal storm sewers . . . shall
require . . . such other provisions as the
Administrator . . . determines appropriate for the control of
such pollutants.' (Emphasis
added.) That provision gives the EPA
discretion to determine what pollution controls are appropriate. . . . [¶] Under that discretionary
provision, the EPA has the authority to determine that ensuring strict
compliance with state water-quality standards is necessary to control
pollutants. The EPA also has the
authority to require less than strict compliance with state water-quality
standards . . . .
Under 33 U.S.C. § 1342(p)(3)(B)(iii), the EPA's choice to include
either management practices or numeric limitations in the permits was within
its discretion. [Citations.]" (Defenders of Wildlife, supra, 191
F.3d at pp. 1166-1167, second italics added.)
Although dicta, this conclusion reached by a federal court interpreting
federal law is persuasive and is consistent with our independent analysis of the statutory language.[13] To support its interpretation of section 1342(p)(3)(B)(iii),
Building Industry additionally relies on the statutory provisions addressing
nonpoint source runoff (a diffuse runoff not channeled through a particular
source), which were also part of the 1987 amendments to the Clean Water
Act. (§ 1329.) In particular, Building Industry cites to
section 1329(a)(1)(C), which states, "The Governor of each State
shall . . . prepare and submit to the [EPA] Administrator
for approval, a report
which . . . [¶] . . . [¶] describes
the process . . . for identifying best management practices
and measures to control each [identified] category . . . of
nonpoint sources and . . . to reduce, to the maximum
extent practicable, the level of pollution resulting from such
category . . . ."
(Italics added.) Building
Industry argues that because this "nonpoint source" statutory
language expressly identifies only the maximum extent practicable standard, we
must necessarily conclude that Congress meant to similarly limit the storm
sewer point source pollution regulations to the maximum extent practicable
standard. The logic underlying this analogy is flawed because the
critical language in the two statutory provisions is different. In the nonpoint source statute, Congress
chose to include only the maximum extent practicable standard
(§ 1329(a)(1)(C)); whereas in the municipal storm sewer provisions,
Congress elected to include the "and such other provisions" clause
(§ 1342(p)(3)(B)(iii)). This difference
leads to the reasonable inference that Congress had a different intent when it
enacted the two statutory provisions.
Moreover, because of a fundamental difference between point and nonpoint
source pollution, Congress has historically treated the two types of pollution
differently and has subjected each type to entirely different
requirements. (See Pronsolino v.
Nastri (9th Cir. 2002) 291 F.3d 1123, 1126-1127.) Given this different treatment, it would be
improper to presume Congress intended to apply the same standard in both
statutes. Building Industry's citation
to comments during the 1987 congressional debates regarding nonpoint source
regulation does not support Building Industry's contentions. 4.
Contention that it is "Impossible" for Municipalities to Meet
Water Quality Standards We also reject Building Industry's arguments woven
throughout its appellate briefs, and emphasized during oral arguments, that the
Water Quality Standards provisions violate federal law because compliance with
those standards is "impossible."
The argument is not factually or legally supported. First, there is no showing on the record before us that the
applicable water quality standards are unattainable. The trial court specifically concluded that
Building Industry failed to make a factual showing to support this contention,
and Building Industry does not present a proper appellate challenge to this
finding sufficient to warrant our reexamining the evidence. All judgments and orders are presumed
correct, and persons challenging them must affirmatively show reversible
error. (Walling v. Kimball (1941)
17 Cal.2d 364, 373.) A party challenging
the sufficiency of evidence
to support a judgment must summarize (and cite
to) all of the material evidence, not just
the evidence favorable to his or her appellate
positions. (In re Marriage of Fink
(1979) 25 Cal.3d 877, 887-888; People v. Dougherty (1982) 138 Cal.App.3d
278, 282.) Building Industry has made no
attempt to comply with this well established appellate rule in its briefs. In a supplemental brief, Building Industry attempted to
overcome this deficiency by asserting that "[t]he record clearly
establishes that [the Water Quality Standards provisions] are unattainable
during the period the permit is in effect." This statement, however, is not supported by
the proffered citation or by the evidence viewed in the light most favorable to
the respondents. Further, the fact that
many of the Municipalities' storm sewer discharges currently violate water
quality standards does not mean that the Municipalities cannot comply with the
standards during the five-year term of the Permit. Additionally, Building Industry's assertions
at oral argument that the trial court never reached the
"impossibility" issue and/or that respondents' counsel conceded the
issue below are belied by the record, including the trial court's rejection of
Building Industry's specific challenge to the proposed statement of decision on
this very point.[14] We reject Building Industry's related argument that it was
respondents' burden to affirmatively show it is feasible to satisfy each of the
applicable Water Quality Standards provisions.
The party challenging the scope of an administrative permit, such as an
NPDES, has the burden of showing the agency abused its discretion or its
findings were unsupported by the facts.
(See Fukuda v. City of Angels, supra, 20 Cal.4th at p. 817; Huntington
Park Redevelopment Agency v. Duncan (1983) 142 Cal.App.3d 17, 25.) Thus, it was not respondents' burden to
affirmatively demonstrate it was possible for the Municipalities to meet the
Permit's requirements. Building Industry alternatively contends it was not required
to challenge the facts underlying the trial court's determination that the
Permit requirements were feasible because the court's determination was wrong as
a matter of law. Specifically, Building
Industry asserts that a Permit requirement that is more stringent than a
"maximum extent practicable" standard is, by definition, "not
practicable" and therefore "technologically impossible" to
achieve under any circumstances.
Building Industry relies on a dictionary definition of
"practicable," which provides that the word means "'something
that can be done; feasible,'" citing the 1996 version of "Webster's
Encyclopedic Unabridged Dictionary."
This argument is unpersuasive. The federal maximum extent practicable
standard it is not defined in the Clean Water Act or applicable regulations,
and thus the Regional Water Board properly included a detailed description of
the term in the Permit's definitions section.
(See ante, fn. 7.) As
broadly defined in the Permit, the maximum extent practicable standard is a
highly flexible concept that depends on balancing numerous factors, including
the particular control's technical feasibility, cost, public acceptance, regulatory
compliance, and effectiveness. This
definition conveys that the Permit's maximum extent practicable standard is a
term of art, and is not a phrase that can be interpreted solely by reference to
its everyday or dictionary meaning.
Further, the Permit's definitional section states that the maximum
extent practicable standard "considers economics and is generally, but not
necessarily, less stringent than BAT." (Italics added.) BAT is an acronym for "best available
technology economically achievable," which is a technology-based standard
for industrial storm water dischargers that focuses on reducing pollutants by
treatment or by a combination of treatment and best management practices. (See Texas Oil & Gas Ass'n v. U.S.
E.P.A. (5th Cir. 1998) 161 F.3d 923, 928.)
If the maximum extent practicable standard is generally "less
stringent" than another Clean Water Act standard that relies on available
technologies, it would be unreasonable to conclude that anything more stringent
than the maximum extent practicable standard is necessarily impossible. In other contexts, courts have similarly
recognized that the word "practicable" does not necessarily mean the
most that can possibly be done. (See Nat.
Wildlife Federation v. Norton (E.D. Cal. 2004) 306 F.Supp.2d 920, 928, fn.
12 ["[w]hile the meaning of the term 'practicable' in the [Endangered
Species Act] is not entirely clear, the term does not simply equate to
'possible'"]; Primavera Familienstiftung v. Askin (S.D.N.Y. 1998)
178 F.R.D. 405, 409 [noting that "impracticability does not mean
impossibility, but rather difficulty or inconvenience"].) We additionally question whether many of Building Industry's
"impossibility" arguments are premature on the record before us. As we have explained, the record does not
support that any required control is, or will be, impossible to implement. Further, the Permit allows the Regional Water
Board to enforce water quality standards during the iterative process, but does
not impose any obligation that the Board do so.
Thus, we cannot determine with any degree of certainty whether this
obligation would ever be imposed, particularly if it later turns out that it is
not possible for a Municipality to achieve that standard. Finally, we comment on Building Industry's repeated warnings
that if we affirm the judgment, all affected Municipalities will be in
immediate violation of the Permit because they are not now complying with
applicable water quality standards, subjecting them to immediate and
substantial civil penalties, and leading to a potential "shut down"
of public operations. These doomsday
arguments are unsupported. The Permit
makes clear that Municipalities are required to adhere to numerous specific
controls (none of which are challenged in this case) and to comply with water
quality standards through "timely implementation of control measures"
by engaging in a cooperative iterative process where the Regional Water Board
and Municipality work together to identify violations of water quality standards
in a written report and then incorporate approved modified best management
practices. Although the Permit allows
the regulatory agencies to enforce the water quality standards during this
process, the Water Boards have made clear in this litigation that they envision
the ongoing iterative process as the centerpiece to achieving water quality
standards. Moreover, the regulations
provide an affected party reasonable time to comply with new permit
requirements under certain circumstances.
(See 40 C.F.R. § 122.47.)
There is nothing in this record to show the Municipalities will be
subject to immediate penalties for violation of water quality standards. We likewise find speculative Building Industry's predictions
that immediately after we affirm the judgment, citizens groups will race to the
courthouse to file lawsuits against the Municipalities and seek penalties for
violation of the Water Quality Standards provisions.[15] As noted, the applicable laws provide time
for an affected entity to comply with new standards. Moreover, although we do not reach the
enforcement issue in this case, we note the Permit makes clear that the
iterative process is to be used for violations of water quality standards, and
gives the Regional Water Board the discretionary authority to enforce water
quality standards during that process.
Thus, it is not ats all clear that a citizen would have standing to
compel a municipality to comply with a water quality standard despite an
ongoing iterative process. (See
§ 1365(a)(1)(2).) IV. Omitted V. Omitted VI. Omitted
DISPOSITION Judgment
affirmed. Building Industry to pay
respondents' costs on appeal. CERTIFIED FOR PARTIAL PUBLICATION CONCURRING BENKE, Acting P.
J. AARON, J. FOOTNOTES [1]
Pursuant to California Rules
of Court, rule 976.1, this opinion is certified for publication with the
exception of Discussion parts [2]
Further statutory references
are to title 33 of the United States Code, unless otherwise specified. [3]
The systems that carry
untreated urban water runoff to receiving water bodies are known as
"[m]unicipal separate storm sewer" systems (40 C.F.R.
§ 122.26(b)(8)), and are often referred to as "MS4s" (see 40
C.F.R. § 122.30). For readability,
we will identify these systems as municipal storm sewers. To avoid confusion in this case, we will
generally use descriptive names, rather than initials or acronyms, when
referring to parties and concepts. [4]
The Clean Water Act defines
a "point source" to be "any discernible, confined and discrete
conveyance, including but not limited to any pipe, ditch, channel, tunnel,
conduit, well, discrete fissure, container, rolling stock, concentrated animal
feeding operation, or vessel or other floating craft, from which pollutants are
or may be discharged."
(§ 1362(14).) [5]
NPDES stands for National
Pollution Discharge Elimination System. [6]
Under the Clean Water Act,
entities responsible for NPDES permit conditions pertaining to their own
discharges are referred to as "copermittees." (40 C.F.R. § 122.26(b)(1).) For clarity and readability, we shall refer
to these entities as Municipalities. [7] The
Permit does not precisely define this phrase, and instead, in its definition
section, contains a lengthy discussion of the variable nature of the maximum
extent practicable concept, referred to as "MEP." A portion of this discussion is as
follows: "[T]he definition of MEP
is dynamic and will be defined by the following process over time: municipalities propose their definition of
MEP by way of their [local storm sewer plan].
Their total collective and individual activities conducted pursuant to
the [plan] becomes their proposal for MEP as it applies both to their overall
effort, as well as to specific activities (e.g., MEP for street sweeping, or
MEP for municipal separate storm sewer maintenance). In the absence of a proposal acceptable to
the [Regional Water Board], the [Regional Water Board] defines MEP." The definition also identifies several factors
that are "useful" in determining whether an entity has achieved the
maximum extent practicable standard, including "Effectiveness,"
"Regulatory Compliance," "Public Acceptance,"
"Cost," and "Technical Feasibility." [8]
Several other parties were
also named as petitioners: Building
Industry Legal Defense Foundation, California Business Properties Association,
Construction Industry Coalition for Water Quality, San Diego County Fire
Districts Association, and the City of [9]
We note that in determining
the meaning of the Clean Water Act and its amendments, federal courts generally
defer to the EPA's statutory construction if the disputed portion of the
statute is ambiguous. (See Chevron U.
S. A. v. Natural Res. Def. Council, Inc. (1984) 467 U.S. 837, 842-844 (Chevron).) However, the parties do not argue this same
principle applies to a state agency's interpretation of the Clean Water
Act. Nonetheless, under governing state
law principles, we do consider and give due deference to the Water Boards'
statutory interpretations in this case.
(See Yamaha Corp. of America v. State Bd. of Equalization, supra, 19
Cal.4th at pp. 7-8.) |