The California Court of Appeal recently considered the issue of whether a permit from a water control board should be upheld, even though the permit required water quality standards that were more stringent than federal standards. (Building Industry Association of San Diego County v. State Water Resources Control Board (2004 Daily Journal D.A.R. 14,492, Cal.App. 4 Dist., Dec. 7, 2004))
The California Regional Water Control Board issued a comprehensive municipal storm sewer permit governing municipal storm sewers owned by 19 local public entities (Municipalities) in the San Diego Area. The permit prohibited the Municipalities from discharging pollutants that would cause the receiving water body to exceed the applicable water quality standards established by state law. The Building Industry Association of San Diego County (“Building Association”) appealed the Board’s decision. The trial court ruled in favor of the Board, and the Building Association appealed to the Court of Appeal.
Appellate Court Decision
Under the federal Clean Water Act, permits for discharges from municipal storm sewers “shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and systems, design and engineering methods, and such other provisions as the Administrator or the State determines appropriate for the control of such pollutants.” Building Association argued that the Board’s permit violates the Clean Water Act because its measures are more stringent than the federal standard of “maximum extent practicable.”
The Court of Appeal disagreed with Building Association. It said that the EPA and state regulatory agencies may impose water pollution controls in addition to those that come within the definition of “maximum extent practicable.” “[I]n 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.”
Therefore, the Board’s permit was appropriate even though the discharge standards were more stringent than the federal “maximum extent practicable” standards
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