Downing, James E.

English

University of Denver

Water Law Review Volume 8 Issue 2 Article 35 1-1-2005 Bldg. Indus. Ass'n of San Diego County v. State Water Res. Control Bd., 22 Cal. Rptr. 3d 128 (Cal. Ct. App. 2004) James E. Downing Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation James E. Downing, Court Report, Bldg. Indus. Ass'n of San Diego County v. State Water Res. Control Bd., 22 Cal. Rptr. 3d 128 (Cal. Ct. App. 2004), 8 U. Denv. Water L. Rev. 665 (2005). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. COURT RFPORTSsubject to the landowners' respective royalty interests. The court re-versed the trial court's order of summary judgment and remanded forentry of summary judgment in favor of the landowners.Julia HerronCALIFORNIABldg. Indus. Ass'n of San Diego County v. State Water Res. ControlBd., 22 Cal. Rptr. 3d 128 (Cal. Ct. App. 2004) (holding the State WaterBoard or a regional water board may impose municipal storm sewercontrol measures more stringent than federal Clean Water Act stan-dards).The Clean Water Act ("CWA") prohibits pollutant emissions from"point sources" unless the party discharging the pollutants obtains aNational Pollution Discharge Elimination System ("NPDES") permit.The Environmental Protection Agency ("EPA") or a state with a feder-ally approved water quality program may issue an NPDES permit. In1987 Congress amended the CWA to add provisions concerningNPDES permits for storm sewer discharges. The California RegionalWater Control Board, San Diego Region ("Regional Water Board"),issued a comprehensive municipal storm sewer permit governing nine-teen local public entities. The Regional Water Board included in thepermit prohibitions concerning municipal storm sewer discharges.The permit prohibited municipalities from discharging pollutants notreduced to the "maximum extent practicable" and from dischargingpollutants which cause the receiving water body to exceed the applica-ble water quality standard.The Building Industry Association of San Diego County ("BuildingIndustry"), an organization representing the interests of construction-related businesses, filed an administrative challenge with the CaliforniaWater Resources Control Board ("State Water Board"). The BuildingIndustry argued that the permit violated federal law because it allowedthe State Water Board and the Regional Water Board to impose mu-nicipal storm sewer control measures more stringent than the federalstandard. The federal standard only required that municipalities re-duce discharged pollutants to the maximum extent practicable. TheBuilding Industry argued that under federal law, the "maximum extentpracticable" standard is the exclusive measure that may be applied tomunicipal storm sewer discharges, and a regulatory agency may notrequire a municipality to comply with a state water quality standard ifthe required controls are more stringent than the "maximum extentpracticable" standard.The State Water Board rejected the Building Industry's appeal.Next, the Building Industry brought an action in the Superior Court ofSan Diego County against the Water Boards, challenging the RegionalWater Board's issuance of the permit and the State Water Board's de-Issue 2WATER LAWREVIEWnial of the Building Industry's administrative challenge. The trialcourt held that the Building Industry failed to meet its burden estab-lishing that the State Water Board abused its discretion in approvingthe permit, or that the permit requirements were "impracticable underfederal law or unreasonable under state law." The Building Industryappealed to the California Court of Appeal, Fourth Appellate District.In reviewing the trial court's legal determinations, the court con-ducted a de novo review. The court acknowledged that the statutorylanguage of section 1342(p) (3) (B) (iii) of the CWA was susceptible tomore than one reasonable interpretation. The court looked to thelegislative history, public policy, and administrative construction of thesection to determine its meaning. The court held that the language insection 1342(p)(3)(B)(iii) allowed the EPA, or an approved stateagency permitted to issue NPDES permits, to impose appropriate waterpollution controls in addition to those that come within the definitionof "maximum extent practicable." The court found that Congress didnot intend to bar the EPA or state agency from imposing a more strin-gent water quality standard if the agency, based on its expertise andtechnical factual information, and after the required administrativehearing procedure, found this standard to be a necessary and workableenforcement mechanism to achieving the goals of the CWA. There-fore, the court found the NPDES permit did not violate federal law andthe water boards had the authority to include a permit provision re-quiring compliance with the more stringent state water quality stan-dards. Accordingly, the court affirmed the superior court's decision.James E. DowningCent. Delta Water Agency v. State Water Res. Control Bd., 124 Cal.App. 4th 245 (2004) (holding permits for appropriation of water thatdid not specify actual uses, amounts, or places of use were speculativeand insufficient to satisfy requirements of the California Constitution,the California Water Code, and the California Environmental QualityAct).Central Delta Water Agency, CCRC Farms, LLC, Plan Tract Farms,the County of San Joaquin, San Joaquin County Flood Control andWater Conservation District, and several Reclamation Districts (collec-tively "districts") challenged permits issued by the State Water Re-sources Control Board ("Board") for a wetlands project to divert waterinto reservoirs that would be constructed on two islands for later redi-version and sale to potential purchasers. In issuing the permits, theBoard did not require the proponents of the project, Delta WetlandsProperties ("DW"), to specify amounts, nature of, impacts of, or bene-ficial use of water sold. As such, the permits defined beneficial usegenerally to include "domestic, irrigation, municipal, industrial, andfish and wildlife" uses, but did not include environmental conse-Volume 8

Bldg. Indus. Ass\u27n of San Diego County v. State Water Res. Control Bd., 22 Cal. Rptr. 3d 128 (Cal. Ct. App. 2004)

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Bldg. Indus. Ass\u27n of San Diego County v. State Water Res. Control Bd., 22 Cal. Rptr. 3d 128 (Cal. Ct. App. 2004)

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