Water Quality Law Update

Summer 2005

NPDES Permits Remanded by California Supreme Court to Determine Whether Requirements were More Stringent than Federal Law.

In 2001, Downey Brand successfully argued that three NPDES permits issued to the Cities of Los Angeles and Burbank were unlawful. The Los Angeles County Superior court agreed and sent these three permits back to the Regional Water Quality Control Board to be readopted.

1) City of LA Permit Appeal Decision - City of Los Angeles , Bureau of Sanitation v. State Water Resources Control Board and California Regional Water Quality Control Board for the Los Angeles Region for the Tillman and Los Angeles-Glendale plants.
Judgment, Statement, Writ
April 4, 2001
2) City of Burbank Permit Appeal Decision - City of Burbank, Department of Public Works v. State Water Resources Control Board and California Regional Water Quality Control Board for the Los Angeles Region for the Burbank treatment plant.
Judgment, Statement , Writ
April 4, 2001

Although portions of these Superior Court decisions were overturned or clarified on appeal, the California Supreme Court ordered the Court of Appeal decision to remain unpublished and remanded the permits for further review by the trial court. If the trial court determines that the permits' requirements were more stringent than required by federal law, then the Regional Board was required to perform the analysis mandated by California Water Code section 13263 and the incorporated factors under Water Code section 13241 before issuing these requirements.

The factors required under Water Code section 13241 include:

(a)   Past, present, and probable future beneficial uses of water.

(b)   Environmental characteristics of the hydrographic unit under consideration, including the quality of water available thereto.

(c)   Water quality conditions that could reasonably be achieved through the coordinated control of all factors which affect water quality in the area.

(d)   Economic considerations.

(e)   The need for developing housing within the region.

(f)   The need to develop and use recycled water.

A hearing on the stringency issue has been set by the Los Angeles Superior Court on February 27, 2006.

For more information on permit appeals or enforcement actions under permits, please contact Katharine Wagner, Melissa Thorme, Nicole Granquist, Missy Verhaag, and Jonathan Shardlow. Additional information concerning Downey Brand's Environmental Law Practice Group is available by clicking the link below.

Environmental Law Practice Description

Please contact us if you have questions or want more information. Please note that the information contained in this newsletter is not intended to provide legal advice. You should consult with an attorney and not rely on any information contained herein regarding your specific situation.