Stormwater News

AB 2063 (Alejo D) Regional water quality control boards.       
        Introduced: 2/23/2012  
        Digest: Under existing law, the Porter-Cologne Water Quality Control Act, the State Water Resources Control Board and the 9 California regional water quality control boards are the principal state agencies with responsibility for the coordination and control of water quality in the state. The act requires the state board to formulate and adopt state policies for water quality control, and requires the regional boards to adopt regional water quality control plans in compliance with the state policies. Existing law requires each regional board to conduct certain proceedings, including, but not limited to, holding at least 6 regular meetings each calendar year.

Existing law, the Administrative Procedure Act, provides for the conduct of administrative adjudication proceedings of state agencies. Existing law generally prohibits communication during a pending proceeding, regarding any issue in the proceeding, to the presiding officer by an employee or representative of an agency that is a party to the proceeding without notice and opportunity for all parties to participate, except as specified.

This bill would state the intent of the Legislature to enact legislation to permit the interaction and communication between board members of a regional board and interested parties that are members of the community so that the regional board conducts its affairs in an open objective manner with public awareness and participation.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.     

AB 2117 (Achadjian R) Waste discharge requirements: storm water.       
        Introduced: 2/23/2012  
        Digest: Under existing law, the State Water Resources Control Board (state board) and the California regional water quality control boards prescribe waste discharge requirements for the discharge of storm water in accordance with the federal national pollutant discharge elimination system (NPDES) permit program. Existing law requires the state board or the regional boards to issue waste discharge requirements which apply and ensure compliance with all applicable provisions of the Federal Water Pollution Control Act and 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.

This bill would prohibit implementation of any new storm water effluent standards or limitations more stringent than the provisions of the Federal Water Pollution Control Act until January 1, 2017. This bill would require the state board, in consultation with affected stakeholders to prepare a comprehensive statewide storm water plan, as prescribed, and submit it to the Legislature by January 1, 2016.
Existing law requires waste discharge requirements be adopted only after notice and any necessary hearing.

This bill would permit state board and regional board staff and members to discuss pending storm water waste discharge requirements with affected parties so long as the discussion is publicly disclosed.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.    

        SB 1306 (Blakeslee R) State Water Resources Control Board.     
        Introduced: 2/23/2012  
        Digest: Under existing law, the Porter-Cologne Water Quality Control Act, the State Water Resources Control Board (state board) and the 9 California regional water quality control boards are the principal state agencies with responsibility for the coordination and control of water quality in the state. The act requires the state board to formulate and adopt state policies for water quality control, and requires the regional boards to adopt regional water quality control plans in compliance with the state policies.
This bill would add findings and declarations to the act.

Existing law requires the California Environmental Protection Agency, or a board, department, or office within the agency, to enter into an agreement with the National Academy of Sciences, the University of California, the California State University, or any similar scientific institution of higher learning, or any combination of those entities, or with a scientist or group of scientists of comparable stature and qualifications that are recommended by the President of the University of California, to conduct an external scientific peer review of the scientific basis for any proposed rule, as defined, to include a policy adopted by the state board that has the effect of a regulation and that is adopted in order to implement or make effective a statute, and prescribes procedures for conducting that scientific peer review, as specified.

This bill would include the issuance, denial, or revocation, on a statewide, regionwide, or industrywide basis, of waste discharge requirements, permits, and waivers, by the state board to the definition of rule for the purposes of the above provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

We are also tracking AB 2311 (Atkins D) which is a spot bill (placeholder) but may turn into something more substantive in the future.  Bill text - http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_2301-2350/ab_2311_bill_20120224_introduced.pdf

Below is an update for you on where the Statewide Stormwater Coalition (SSC) is currently:

• California Council for Environmental and Economic Balance to undertake new project that seeks to reform water quality regulatory process - We are passing along information on a project being undertaken by the California Council for Environmental and Economic Balance (http://www.cceeb.org/).  The folks organizing the project are seeking funding contributions and are close to reaching their fundraising target, but need additional support.  Please review the attached document and consider contributing to make it happen. If you have any questions, please contact Bob Lucas (916‐444‐7337) or Gerald Secundy (415‐512‐7890, ext. 16).

•-     Template “support” letters are being drafted for SB 964/SB 965 (Wright) – We are currently drafting “support” template letters for SB 964 and SB 965.  The SSC Executive Committee recently adopted a “support” position on these two bills and will be recommending that SSC members individually send in those support letters when prompted.  The “support” template letters will be distributed  in the next week or so for SSC members to act on.

•-       Other bill activity – There are several other bill concepts that are being developed that are looking towards process reform for the State Water Resources Control Board.  Some of those concepts include:

•o   Addressing scientific peer review processes.

•o   Clearly define Maximum Extent Practicable (MEP).

•o   Bill to address oil run-off from vehicles.

We will be providing specific bill language when and if they are formally introduced in the State Legislature.  The deadline to introduce new bills is February 24.

 

•-       SSC members and non-members are encouraged to reach out to their local labor unions; badly conceived stormwater permits are a threat to local general funds – As we all know, the latest draft MS4 permit, if it was approved in its current form, would have been devastating to many local government’s general funds.  In some cities and counties on the brink, this would have meant non-compliance with their stormwater permit, third-party lawsuits and the choice of cutting police, fire, library and parks services to afford to implement a larger general-funded local stormwater program.  This predicament, caused by State Water Resources Control Board actions, constitutes what we consider to be a threat to local municipal labor organizations and their members.  Roseville has already reached out to our municipal labor unions on this issue and recommend that other SSC members do the same.  With labor’s help, we will be far more effective in the political process in changing Board processes and  their outcomes – stormwater permits and protect scarce local general fund resources from poorly conceived state-issued stormwater permits in the future.  If you need assistance or ready-made outreach material to reach out to your local labor unions on this issue, contact Sean Bigley (sbigley@roseville.ca.us).

If you need any other updates or assistance, feel free to send your questions my way and we’ll get an answer for you.  We are here to help and support our members.  Thank you and enjoy the rest of your day.

Sean Bigley
Administrative Analyst II
Governmental Affairs | Communications
Environmental Utilities
City of Roseville
2005 Hilltop Circle
Roseville, CA 95747
(916) 774-5513
www.roseville.ca.us/eu

This decision on RDA would impact on Stormwater Budget significantly! Check out the latest news regarding the Supreme Court Decision on RDA.

Source Link

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Californians bid farewell not only to 2011 this week, but also to the state's redevelopment agencies (RDA). The California Supreme Court upheld a bill that shut down the nearly 400 RDAs scattered around the state in a ruling issued on Dec. 29.

Redevelopment agencies were formed to fight blight, but Gov. Jerry Brown pushed for their elimination, arguing that diverting $5 billion in property tax revenue to RDAs left the state short on money needed for schools. In Mountain View, the city's RDA is largely credited with revitalizing downtown.

According to the court, since the legislature had the authority to create redevelopment agencies, it also had the power to dissolve them.

"Today's ruling by the California Supreme Court validates a key component of the state budget and guarantees more than a billion dollars of ongoing funding for schools and public safety," Gov. Brown said in a statement released Thursday.

However, the court ruling wasn't a total victory for the governor. The agencies were eliminated by AB-26, but another bill, AB-27 – dubbed "extinction or extortion" by staff -- let agencies stay open by making hefty annual payments to the state. The League of California Cities and the California Redevelopment Association filed a lawsuit challenging the constitutionality of both bills.

The California Supreme Court ruling declared AB-27 unconstitutional based on the passage of Proposition 22 in November 2010, which made it illegal for the state to take money from local funds such as redevelopment revenue.

Losing its downtown RDA will cost Mountain View about $5 million in redevelopment funds, according to city officials. Paying what city officials dubbed a "ransom" to keep the agency open would have been expensive -- estimated at $2 million.

The downtown revitalization district was created in 1969 to help revitalize what was then a nearly vacant downtown. One of the oldest such districts in the state, it had been set to expire in April 2011, but City Council members approved a two-year extension in January in order to spend the authority's $5.5 million balance and "wind down in an orderly fashion," said then-City Manager Kevin Duggan.

Daniel DeBolt contributed to this story

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More info on the RDA issues.

http://protectourlocaleconomy.com/node/92

http://protectourlocaleconomy.com/node/91

http://www.bondbuyer.com/issues/121_4/calif-supreme-court-rda-dissolution-1034911-1.html

Source Link

On December 2, 2011, Sacramento Superior Court Judge Lloyd G. Connelly issued a decision invalidating the numeric effluent limitations (NELs) contained in the General Permit for Storm Water Discharges Associated With Construction and Land Disturbance Activities, State Water Resources Control Board Order 2009-009-DQ (the Construction General Permit or CGP).  (California Building Industry Association, et al. v. State Water Resources Control Board, Sacramento County Superior Court Case No. 34-2009-80000338.)  The court found the NELs were not supported by substantial evidence, and that the State Water Board failed to comply with federal Clean Water Act requirements for the establishment of technology based numeric effluent limitations.  The court granted a peremptory writ of mandate ordering the State Water Board to set aside the portions of the GCP imposing NELs for turbidity and pH and to refrain from enforcing the NELs.  Other provisions of the CGP remain in effect and enforceable.

The California Building Industry Association (CBIA) challenged the Construction General Permit on multiple grounds.  First, CBIA claimed that the CGP established NELs for turbidity and pH applicable to stormwater runoff from high risk (Level 3) construction sites without evidentiary support and without consideration of the factors enumerated in federal law for evaluation of NELs.  As discussed below, the court agreed with CBIA on this point and invalidated the NELs.  The court rejected CBIA’s remaining challenges to the permit, including the contention that certain permit provisions are more stringent than required by federal law and thus State law requires an assessment of specified public interest factors, including consideration of economics.

In rejecting CBIA’s argument that the numeric effluent limitations imposed in the CGP go beyond federal law because the U.S. Environmental Protection Agency (EPA) has not adopted numeric effluent limitation guidelines for turbidity and pH, the court stated that a numeric limit, when properly developed by the State Water Board using best professional judgment, is no more strict than a narrative effluent limitation developed to meet the same water quality standard.  The court also found that the post-construction provisions of the permit, requiring projects to install best management practices and establish a long-term maintenance plan, did not exceed the State Water Board’s authority because the installation of the BMPs and the development of the plan occur during the period of coverage under the permit rather than after termination.

With regard to the NELs, the court began its analysis with the Clean Water Act (33 U.S.C. § 1251 et seq.)  The Act requires states to develop technology-based effluent limitations on a case-by-case basis in the absence of applicable U.S. EPA-promulgated effluent limitation guidelines.  In developing the NELs, the State Water Board was required to apply specified factors to identify the degree of pollutant reduction that could be provided by various control measures and practices.  CBIA argued, and the court concurred, that the turbidity and pH NELs in the CGP were not derived from relevant performance data.  The court noted, “[a]bsent from the Board’s discussion of how the turbidity NEL of 500 NTU was developed is performance data for the specific BMP measures and practices in various construction site conditions.”  None of the analyses cited by the Water Board “provide data from which it can be determined that available technologies are capable of controlling erosion and reducing sediment discharges from construction sites with a variety of soils, climates and topographies to a turbidity of 500 NTU or lower.”  To comply with the Clean Water Act, the State Water Board was required to identify available technologies, gather data characterizing the performance of the technologies under various site conditions, and derive NELs consistent with the performance data. 

The application of numeric limits to stormwater has been an issue of significant concern within the regulated community.  This decision sheds light on the type and specificity of information required to support the imposition of numeric requirements on stormwater discharges.  The case is also important in affirming that where particular elements are set forth in statute and regulation, the State Water Board is obligated to meaningfully evaluate those factors in establishing enforceable requirements.

For additional information on California Building Industry Association, et al. v. State Water Resources Control Board, Sacramento County Superior Court Case No. 34-2009-80000338, contact Roberta Larson at blarson@somachlaw.com.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.