Jennifer Fordyce State Water Resources Control Board – Office of Chief Counsel

What Will I Cover in this Presentation? Background on how lawsuits are brought under the Clean Water Act and what court hears them TMDLs in the Los Angeles Region 2001 Los Angeles County MS4 Permit litigation 2012 Los Angeles County MS4 Permit – Administrative and Judicial Challenges

How lawsuits under the Clean Water Act are brought and what court hears them Clean Water Act is administered by U.S. EPA and states = “Cooperative federalism” If state fails to act, U.S. EPA may develop WQS and TMDLs When state acts – legal challenges proceed in state court When U.S. EPA acts – legal challenges proceed in federal court When an approved state issues an NPDES permit, the permit is a state permit that serves in lieu of a federal permit As a state permit, legal challenges proceed in state court MS4 permits - Flexible program that change with each iteration

Heal the Bay and Santa Monica Baykeeper v. U.S. EPA 1998 – Lawsuit alleged that U.S. EPA failed to carry out a mandatory duty under the Clean Water Act by failing to ensure that California adopt TMDLs for impaired waters in the Los Angeles Region. Case settled, resulting in a stipulated consent decree: Aggressive 13-year schedule to develop TMDLs Los Angeles Regional Board was the lead for TMDL development If USEPA did not approved a state adopted TMDL pursuant to the schedule, USEPA would adopt the TMDL itself Development of TMDLs shaped much of the water quality planning and permitting in the Los Angeles Region

Brief overview of 2001 Los Angeles County MS4 Permit Largely BMP-based permit Receiving water monitoring only. Part 2 – Receiving Water Limitations provisions - Required per State Board Order Parts 2.1 and 2.2 – prohibited discharges that cause or contribute to violations of receiving water limitations or to a condition of nuisance Parts 2.3 and 2.4 – established process that must be undertaken by a permittee to achieve Parts 2.1 and 2.2 (the so-called “iterative process”)

County of Los Angeles et al. v. State Water Board and Los Angeles Regional Board 2005 Superior Court decision – upheld permit. Notable findings: Part 2 of the permit did not contain a “safe harbor” provision Regional Board could require compliance with water quality standards b/c MEP standard is not sole standard, or substantive upper limit, that applies to MS4 discharges. Terms of the permit, taken as a whole, constitute definition of MEP 2006 Court of Appeal decision – upheld permit. Limited to a few issues. Unpublished portion – upheld Board’s authority to impose requirements beyond MEP and also concurred Board was not required to consider costs (but nevertheless did).

Unfunded State Mandates Claims Article XIII, Section 6(a) of the California Constitution - whenever “any state agency mandates a new program or higher level of service on any local government, the state shall provide a subvention of funds to reimburse that local government for the costs of the program or increased level of service.” Exceptions: Mandates imposed by federal law Permittee can charge fees sufficient to pay for compliance with requirements Commission on State Mandates determined certain requirements of 2001 La County MS4 Permit were unfunded state mandates. Superior Court and Court of Appeal reversed. Pending before California Supreme Court.

NRDC v. County of Los Angeles Citizen suit by 2 environmental groups – filed in 2008 – still ongoing Concerns exceedances of receiving water limitations detected at receiving water monitoring stations 9 th Circuit Court of Appeal affirmed that Part 2 of the permit did not include a “safe harbor” On remand from U.S. Supreme Court, 9 th Circuit found that, for the LA and San Gabriel Rivers, the mass emissions monitoring data are sufficient to establish a receiving water limitations violation as a matter of law

State Water Board Order WQ petitions filed – About 60 different contentions raised State Board upheld 2012 Los Angeles County MS4 Permit, with some modifications Continuance of Receiving Water Limitations Provisions – No “safe harbor” Upheld WMP/EWMP provisions Provided new policy direction encouraging other regional water boards to utilized approach – Must be ambitious, rigorous, and transparent Numeric effluent limitations were reasonable, but may not be appropriate in all MS4 permits Joint responsibility scheme was appropriate

Current Judicial Litigation on 2012 Los Angeles County MS4 Permit 3 separate cases: Duarte & Huntington Park – Orange County Superior Court Challenge to numeric effluent limitations, WMP/EWMP provisions, non-stormwater prohibition, monitoring and reporting requirements, and joint responsibility scheme Gardena – Orange County Superior Court Challenges virtually every aspect of the permit. Also raises due process claims. NRDC and Los Angeles Waterkeeper – currently at Los Angeles County Superior Court Challenge to WMP/EWMP provisions, claiming violations of the Clean Water Act’s anti- backsliding provisions and federal and state anti-degradation policies. Claims permit contains illegal compliance schedules for California Toxics Rule pollutants. All cases are pending and still in initial stages of litigation