State Dept. of Finance v. Com. on State Mandates ( 2013 )

Filed 10/16/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
STATE DEPARTMENT OF FINANCE et al., B237153
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. BS130730)
v.
COMMISSION ON STATE MANDATES,
Defendant and Respondent;
COUNTY OF LOS ANGELES et al.,
Real Parties in Interest and Appellants.
APPEAL from a judgment of the Superior Court of Los Angeles County, Ann I. Jones,
Judge. Affirmed.
Burhenn & Gest, Howard Gest, David W. Burhenn, for Appellants and Real Parties in
Interest County of Los Angeles, Cities of Bellflower, Carson, Commerce, Covina, Downey
and Signal Hill.
John F. Krattli, County Counsel, and Judith Fries, Principal Deputy Counsel, for
Appellant and Real Party in Interest County of Los Angeles.
Somach Simmons & Dunn, Theresa A. Dunham, Nicholas A. Jacobs for California
Stormwater Quality Association, Santa Clara Valley Urban Runoff Pollution Prevention
Program, Riverside County Flood Control and Water Conservation District and County of
Riverside, the Alameda County Clean Water Program, and City/County Association of
Governments of San Mateo County as Amici Curiae on behalf of Real Parties in Interest and
Appellants.
Building Industry Legal Defense Foundation, Andrew R. Henderson, as Amicus
Curiae on behalf of Real Parties in Interest and Appellants.
Kamala D. Harris, Attorney General, Douglas J. Woods, Senior Assistant Attorney
General, Peter K. Southworth, Supervising Deputy Attorney General, and Kathleen A. Lynch,
Deputy Attorney General, for Plaintiffs and Respondents State of California Department of
Finance, State Water Resources Control Board, and California Regional Water Quality
Control Board, Los Angeles Region.
No appearance for Defendant and Respondent Commission on State Mandates.
______________________________
In December 2001, the California Regional Water Quality Control Board, Los Angeles
Region (Regional Board) issued a municipal stormwater sewer permit (Permit) to real parties
in interest Los Angeles County and designated cities within the county, including the cities of
Bellflower, Carson, Commerce, Covina, Downey and Signal Hill (collectively County). The
Permit is governed by a complex state and federal statutory scheme regulating pollutant
discharge into waterways under the federal Clean Water Act and the California Porter-
Cologne Water Act. The Permit‘s subvention status is subject to initial determination by the
Commission on State Mandates (Commission). Real parties in interest filed a test claim
before the Commission, seeking to determine whether four requirements of the Permit (to
install trash receptacles at transit stops and to conduct inspections of commercial, industrial,
and construction sites) constituted unfunded state mandates subject to reimbursement under
the California Constitution, article XIII B, section 6 because although the Permit was
governed by both federal law and state law, the County asserted the Permit contained
additional state requirements not found in the governing federal statutes and regulations. The
Commission agreed and found that the requirements constituted state mandates, although it
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concluded subvention was required only for the trash receptacles because the County had the
ability to levy fees to pay for the inspections.
The Department of Finance filed a petition for writ of mandate in the trial court,
seeking to overturn the Commission‘s ruling, contending that the requirements were solely
federal mandates because they implemented the directive of the federal statutes and
regulations and thus were not subject to state subvention. The trial court agreed and found
that the Commission erred in finding the Permit requirements were state mandates because it
did not apply the applicable federal ―maximum extent practicable‖ standard, and issued a writ
of mandate ordering the Commission to vacate its decision.
On appeal, the dispute centers on whether the federal standard requiring the reduction
of pollutants to the maximum extent practicable encompassed the specific four requirements
of the Permit, given that the federal regulations at issue did not expressly spell out such
requirements. The amici parties California Stormwater Quality Association et al. (collectively
CSQA) join in the County‘s arguments that the trial court erred in finding the maximum
extent practicable standard controlled. The amicus party Building Association Legal Defense
Foundation (Building Association) asserts that the issue is one of preemption, and the trial
court erred in finding that the federal regulations governed the court‘s mandate analysis. We
agree with the trial court‘s conclusion that the Commission failed to apply the controlling
maximum extent practicable standard, that the Permit‘s mandates implement the maximum
extent practicable objective, and thus are federal mandates. We affirm the judgment.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Regulatory Structure
The Permit was issued as a ―National Pollutant Discharge Elimination System‖
(NPDES) permit pursuant to the Clean Water Act, Title 33 United States Code section 1342.
The Clean Water Act requires operators of municipal separate storm sewer systems to obtain
NPDES permits that contain controls to ―reduce the discharge of pollutants to the maximum
extent practicable.‖ (33 U.S.C. § 1342(p)(3)(B)(iii).) The Commission did not consider this
standard in evaluating the Permit‘s requirements, instead looking solely to whether the
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requirements were expressly set forth in the implementing federal regulation at 40 Code of
Federal Regulations, part 122.26(d)(2)(iv)(A)–(D) (a copy of appendix A is attached).
1. Federal Framework
In 1972, Congress passed the Clean Water Act. (33 U.S.C. § 1251 et seq.) The Clean
Water Act‘s national goal was to eliminate discharge of pollutants into navigable waters of the
United States by 1985. (PUD No. 1 of Jefferson County v. Washington Dept. of Ecology
(1994) 511 U.S. 700, 704 [114 S.Ct. 1900, 128 L.Ed.2d 716]; City of Burbank v. State Water
Resources Control Board (2005) 35 Cal.4th 613, 619–620 (City of Burbank).) To achieve
this goal, the Clean Water Act ―established restrictions on the ‗quantities, rates, and
concentrations of chemical, physical, biological, and other constituents‘‖ that could be
discharged into the nation‘s waterways. ―[T]hese effluent limitations permit the discharge of
pollutants only when the water has been satisfactorily treated to conform to federal water
quality standards. (33 U.S.C. §§ 1311 1362(11).)‖ (City of Burbank, at p. 620.)
―The Clean Water Act employs the basic strategy of prohibiting emissions from ‗point
sources,‘[1] unless the [emitter] obtains . . . an NPDES permit.‖ (Building Industry Assn. of
San Diego County v. State Water Resources Control Bd. (2004) 124 Cal.App.4th 866, 872,
fns. omitted (Building Industry).) NPDES permits are required for ―a discharge from a
municipal separate storm sewer system serving a population of 250,000 or more.‖ (33 U.S.C.
§ 1342(p)(2)(C).) NPDES permits have ―‗five components: technology-based limitations,
water-quality based limitations, monitoring and reporting requirements, standard conditions,
and special conditions.‘‖ (WaterKeepers Northern California v. State Water Resources
Control Bd. (2002) 102 Cal.App.4th 1448, 1452.)
Special rules apply to storm sewers. In 1987, Congress amended the Clean Water Act
to require operators of ―municipal separate storm sewer systems‖ (MS4)2 to control or reduce
1A ―point source‖ is ―any discernable, confined and discrete conveyance‖ and
includes ―any pipe, ditch, channel . . . from which pollutants . . . may be discharged.‖ (33
U.S.C. § 1362(14).)
2 MS4‘s fall under the definition of ―point source.‖ (33 U.S.C. § 1362(14).)
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the discharge of pollutants to the ―maximum extent practicable‖ (MEP). 3 (33 U.S.C.
§ 1342(p)(3)(B)(iii).) Congress ―clarified that the EPA [Environmental Protection Agency
(EPA)] had the authority to fashion NPDES permit requirements to meet water quality
standards without specific numerical effluent limits and instead to impose ‗controls to reduce
the discharge of pollutants to the maximum extent practicable . . . .‘‖ (Building Industry,
supra, 124 Cal.App.4th at p. 874; 33 U.S.C. § 1342(p)(3)(B)(iii).) Stormwater discharge is a
significant source of water pollution, and contains suspended metals, sediments, algae-
promoting nutrients, trash, used motor oil, raw sewage, pesticides, and other toxic
contaminants. Sources of polluted stormwater discharge are ―urban development, industrial
facilities, construction sites, and illicit discharges and connections to storm sewer systems.‖
(Environmental Defense Center, Inc. v. U.S.E.P.A. (9th Cir. 2003) 344 F.3d 832, 840.) Unlike
a sanitary sewer system, which transports sewage for treatment at a wastewater facility, MS4‘s
convey only stormwater. (Natural Resources Defense Council, Inc. v. County of Los Angeles
(2013) 725 F.3d 1194, 1197, fn. 2.) As a result, the flexible maximum extent practicable
standard is designed to permit MS4 dischargers to comply with such requirement on a permit-
by-permit basis.
The EPA promulgated regulations to provide guidance to stormwater system
permittees concerning requirements for MS4 permits. The regulations contain certain
requirements, such as requiring MS4 permittees to include a program to monitor discharge
from municipal landfills, hazardous waste treatment plants, but otherwise allow permittees to
develop their own programs to meet the maximum extent practicable standard. (See 40
3 Title 33 United States Code section 1342(p)(3)(B)(iii) requires operators of
municipal storm sewer systems permits to ―require controls to reduce the discharge of
pollutants to the maximum extent practicable, including management practices, control
techniques and system, design and engineering methods, and such other provisions as the
Administrator or the State determines appropriate for the control of such pollutants.‖ The
Clean Water Act does not define the ―maximum extent practicable‖ standard. (City of
Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1427, fn. 13.)
Indeed, the EPA has expressly declined to directly define the standard. (40 C.F.R. § 122.2; 64
Fed.Reg. 68722, 68754 (Dec. 8, 1999).)
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C.F.R. § 122.26(d)(2)(iv)(A)–(C).) Before an NPDES permit is issued, the federal or state
regulatory agency must follow an extensive administrative hearing procedure. (See, e.g., 40
C.F.R. §§ 124.3, 124.6, 124.8, 124.10.)
2. State Framework
With respect to concurrent state regulation, ―[t]he Clean Water Act anticipates a
partnership between the States and the Federal Government, animated by a shared objective:
‗to restore and maintain the chemical, physical, and biological integrity of the Nation‘s
waters.‘ [Citation.]‖ (Arkansas v. Oklahoma (1992) 503 U.S. 91, 101 [112 S.Ct. 1046, 117
L.Ed.2d 239].) The Clean Water Act permits states to adopt more stringent standards than
those under the Clean Water Act itself. (33 U.S.C. § 1370.) ―Nothing in this part precludes a
State from: (1) Adopting or enforcing requirements which are more stringent or more
extensive than those required under this part; (2) Operating a program with a greater scope of
coverage than that required under this part.‖ (40 C.F.R. § 123.l(i).)
Under California law, the Porter-Cologne Water Quality Control Act (Porter-Cologne
Act), enacted in 1969, predates the Clean Water Act and establishes a statewide program for
water quality control. (Wat. Code, § 13000 et seq.) Nine regional boards, overseen by the
State Water Resources Control Board (State Board), administer the state program in their
respective regions. (Wat. Code, §§ 13140, 13200 et seq., 13240, 13301.) After enactment of
the Clean Water Act, the Legislature ―amended the Porter-Cologne Act to require the State
Board and regional boards to issue discharge permits that ensure compliance with the Clean
Water Act. (See Wat. Code, § 13370 et seq.)‖ (WaterKeepers Northern California, supra,
102 Cal.App.4th at p. 1452.) The Clean Water Act thus permits NPDES permits to be issued
either by the EPA or an EPA-approved state. (33 U.S.C. § 1342(a)(1), (b); Wat. Code,
§§ 13374, 13377.) The EPA has issued guidance documents discussing best management
practices (BMP) to be included in MS4 permits. Under the Clean Water Act, the proper scope
of the controls in an NPDES permit depends on the applicable state water quality standards
for the affected water bodies. (See Communities for a Better Environment v. State Water
Resources Control Bd. (2003) 109 Cal.App.4th 1089, 1092.) Thus, the Clean Water Act
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establishes a partnership between the EPA and the various states through the NPDES permit
system for addressing pollution problems. The Clean Water Act envisions the use of both
state and federal law to remedy pollution problems. (International Paper Co. v. Ouellette
(1986) 479 U.S. 481, 490 [107 S.Ct. 805, 93 L.Ed.2d 883].)
Regional boards are authorized to issue NPDES permits for five-year periods. (33
U.S.C. § 1342(b)(1)(B); Wat. Code, § 13378; City of Rancho Cucamonga v. Regional Water
Quality Control Bd. (2006) 135 Cal.App.4th 1377, 1381.) Thus, in California, wastewater
discharge requirements established by the regional boards also serve as the NPDES permits
required by federal law. (Wat. Code, § 13374; City of Burbank, supra, 35 Cal.4th at p. 621;
Building Industry, supra, 124 Cal.App.4th at p. 875.) The state issuing a permit must insure it
complies with federal requirements and provide for continued monitoring and inspection. (33
U.S.C. §§ 1342(b)(1), (b)(2), 1311, 1312, 1316, 1317.) When a permit is renewed, modified,
or reissued, it must be at least as stringent as the prior permit. (33 U.S.C. § 1342(o).)
The EPA retains veto power over a state-issued NPDES permit if the EPA does not
find compliance with any applicable federal requirements. (33 U.S.C. § 1342(d); 40 C.F.R.
§ 123.44.) Further, the EPA may withdraw its approval of a state NPDES program if it
determines the state is not administering the program in compliance with the federal
requirement. (33 U.S.C. § 1342(c)(3); 40 C.F.R. §§ 123.63, 123.64.) If a state repeatedly
issues permits that are vetoed by the EPA, the EPA may find this constitutes grounds for
withdrawal of the state‘s program approval. (40 C.F.R. § 123.63(a)(2)(ii).)
B. The Commission on State Mandates
The California Constitution, article XIII B, section 6(a), provides, in relevant part:
―Whenever the Legislature or any state agency mandates a new program or higher level of
service on any local government, the state shall provide a subvention[4] of funds to reimburse
that local government for the costs of such program or increased level of service . . . .‖ (See
4 ―‗Subvention‘ generally means a grant of financial aid or assistance, or a subsidy.
[Citation.]‖ (Hayes v. Commission on State Mandates (1992) 11 Cal.App.4th 1564, 1577
(Hayes).)
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also Gov. Code, § 17514.) The purpose of this provision ―is to preclude the state from
shifting financial responsibility for carrying out governmental functions to local agencies,
which are ‗ill equipped‘ to assume increased financial responsibilities because of the taxing
and spending limitations that articles XIII A and XIII B impose. [Citations.]‖ (County of San
Diego v. State of California (1997) 15 Cal.4th 68, 81.)
After the adoption of article XIII B by the voters in November 1979, the Legislature
enacted a statutory and administrative scheme for implementing article XIII B, section 6, and
resolving claims and disputes arising out of its provisions. (Gov. Code, § 17500 et seq.;
Kinlaw v. State of California (1991) 54 Cal.3d 326, 331–333.) In 1984, the Legislature
created the Commission as a quasi-judicial body to carry out a comprehensive administrative
procedure to resolve disputes over the existence of state-mandated local programs. (Gov.
Code, § 17500; California School Boards Assn. v. State (2009) 171 Cal.App.4th 1183, 1199–
1200.) The Commission process uses a ―test claim,‖ which must be filed within one year of
the effective date of the mandate or incursion of costs. (Gov. Code, § 17551, subd. (c);
Grossmont Union High School Dist. v. State Dept. of Education (2008) 169 Cal.App.4th 869,
877.) The Commission acts on the test claim at a public hearing where evidence may be
presented. (Gov. Code, § 17553.)
In order to qualify for subvention, the required activity or task must constitute a new
program or higher level of service. (San Diego Unified School Dist. v. Commission on State
Mandates (2004) 33 Cal.4th 859, 874.) The courts have defined a ―program‖ subject to article
XIII B, section 6, of the California Constitution, as one that carries out the governmental
function of providing public services, or a law that imposes unique requirements on local
agencies or school districts to implement a state policy, but does not apply generally to all
residents and entities in the state. (San Diego Unified School Dist., at p. 874.) To determine if
the program is new or imposes a higher level of service, the test claim legislation must be
compared with the legal requirements in effect immediately before the enactment of the test
claim legislation. A ―higher level of service‖ occurs when the new ―requirements were
intended to provide an enhanced service to the public.‖ (Ibid.) Finally, the newly required
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activity or increased level of service must impose costs mandated by the state. (County of
Fresno v. State of California (1991) 53 Cal.3d 482, 487.)
The subvention requirement does not extend to federally mandated programs. (Cal.
Const., art. XIII B, § 9, subd. (b); Gov. Code, §§ 17513, 17556, subd. (c); City of Sacramento
v. State of California (1990) 50 Cal.3d 51, 57–58 (City of Sacramento).) Further, even if the
program requires a higher level of service, if the local agency has the authority to levy
charges, fees, or assessments sufficient to pay for the program, it will not constitute a mandate
within the meaning of article XIII B. (Gov. Code, § 17556, subd. (d).)
The Commission has the sole and exclusive authority to adjudicate whether a state
mandate exists. (Redevelopment Agency v. Commission on State Mandates (1996) 43
Cal.App.4th 1188, 1192–1193.) The Commission‘s authority is limited only by judicial
review. ―A claimant or the state may commence a proceeding in accordance with the
provisions of Section 1094.5 of the Code of Civil Procedure to set aside a decision of the
commission on the ground that the commission‘s decision is not supported by substantial
evidence. . . .‖ (Gov. Code, § 17559, subd. (b).)
C. The Permit
1. Background
To obtain the permit, the County of Los Angeles, on behalf of itself and the cities,
submitted on January 31, 2001 a Report of Waste Discharge (ROWD), which constituted a
permit application, and a Stormwater Quality Management Program, which constituted the
permittees proposal for best management practices that would be required in the permit. The
ROWD contained a Storm Water Management Program as set forth in 40 Code of Federal
Regulations, part 122.26(d), which in turn included a Storm Water Quality Management
Program (SQMP).
The Regional Board issued notices to the permitees and interested agencies and
persons of its intent to issue the Permit, and provided an opportunity for comment and
recommendations. In addition, the Regional Board conducted public workshops to discuss
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drafts of the Permit, and held a public hearing at which it heard and considered all comments
pertaining to the Permit‘s requirements.
The Permit was issued pursuant to section 402 of the Clean Water Act (33 U.S.C.
§ 1342), and was originally adopted by the Regional Board on December 13, 2001 as NPDES
Permit No. CAS004001, and amended on September 14, 2006 and August 9, 2007.5 The
Permit established waste discharge requirements for municipal storm water and urban runoff
discharges within the County of Los Angeles and the incorporated cities therein, except the
City of Long Beach.
The 72-page permit is divided into six parts. The County, the flood control district,
and the 84 cities are designated in the permit as the permittees. The Permit incorporated the
Regional Board‘s factual findings regarding the nature of the harms occurring because of
storm water discharge, surface water runoff, and pollutants. The Permit found ―[t]he
regulations require that permittees establish priorities and procedures for inspection of
industrial facilities and priority commercial establishments. This permit, consistent with
[EPA] policy, incorporates a cooperative partnership, including the specification of minimum
expectations, between the Regional Board and the permittees for the inspection of industrial
facilities and priority commercial establishments to control pollutants in storm water
discharges (58 Fed. Reg. 61157).‖ Further, ―Section 402 of the [Clean Water Act] (33 U.S.C.
§ 1342(p)) provides that MS4 permits must ‗require controls to reduce the discharge of
pollutants to the maximum extent practicable, including management practices, control
techniques and systems, design engineering methods and such other provisions as the [EPA]
Administrator or the State determines appropriate for the control of such pollutants.‘ The
State Water Resources Control Board‘s (State Board) Office of Chief Counsel (OCC) has
issued a memorandum interpreting the meaning of MEP to include technical feasibility, cost,
and benefit derived with the burden being on the municipality to demonstrate compliance with
5 The Permit was originally issued in 1990 and renewed in 1996.
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MEP by showing that a BMP [best management practice] is not technically feasible in the
locality or that BMP[] costs would exceed any benefit to be derived. . . .‖
Separately, to facilitate compliance with federal regulations, the State Board has
previously issued two statewide general NPDES permits for stormwater discharges: (1) for
stormwater from industrial sites [NPDES No. CAS000001, General Industrial Activity Storm
Water Permit (GIASP)] and (2) for stormwater from construction sites [NPDES
No. CAS000002, General Construction Activity Storm Water Permit (GCASP)], originally
issued in 1997 and 1999, respectively. Facilities discharging stormwater associated with
industrial activities and construction sites of five acres or more of disturbed area were required
to obtain individualized NPDES permits, or to be covered by a statewide general permit. The
Permit sets forth that ―[t]he USEPA guidance anticipates coordination of the state-
administered programs for industrial and construction activities with the local agency program
to reduce pollutants in storm water discharges to the MS4.‖
The GCASP was issued to address effluent limitations promulgated under the Clean
Water Act and as specified in the applicable federal regulations. Under the GCASP, the state
requires inspections of construction sites prior to anticipated storm events to identify areas
contributing to the discharge of stormwater, and to ensure that BMPs were properly installed
and functioned adequately during the storm. In addition, the site must permit the Regional
Board, the State Board, the EPA, and the operator of the storm sewer into which the site
discharges stormwater to inspect the site. The GIASP was likewise issued to address effluent
limitations promulgated under the Clean Water Act and as specified in the federal regulations
applicable to the Clean Water Act. With respect to inspections, the GIASP has an extensive
monitoring program that is facility-specific and requires visual inspections and water
sampling and analysis. Under the GIASP, the facility operator may, if it meets certain
conditions, certify compliance with the GIASP and reduce the number of sampling events.
Preventative maintenance must also be conducted by the facility‘s operators, and includes
inspection of structural storm water controls (catch basins, oil/water separators, etc.) as well as
other facility equipment and systems. In addition, there must be an inspection schedule of all
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potential pollutant sources. The site must also permit Regional Board, State Board, EPA and
any local storm water agency to enter into the site for inspections. The GIASP specifically
notes that it ―does not preempt or supersede the authority of local agencies to prohibit, restrict,
or control storm water discharges and authorized non-storm water discharges to storm drain
systems or other water-courses within their jurisdictions as allowed by State and Federal law.‖
The Regional Board has the authority to enforce the GIASP and GCASP.
The Los Angeles County Flood Control District was designated as the principal
permittee and was to, among other things, coordinate permit activities among the permittees
and provide technical and administrative support.
2. Permit Requirements
The County challenged before the Commission parts 4C2a (inspections of commercial
facilities), 4C2b (inspection of industrial facilities), 4E (inspection of construction sites) and
4F5c3 (installation of trash receptacles) of the Permit.
A. Commercial Facilities. (Part 4C2a)
Restaurants, automotive service facilities, retail gasoline stores and automotive
dealerships were to be inspected by the permittees twice during the five-year term of the
Permit, with a minimum of one year between inspections.
With respect to restaurants, the Permit required each permittee to inspect all restaurants
within its jurisdiction to confirm that stormwater BMP‘s were being effectively implemented,
and included verification that the restaurant operator: ―has received educational materials on
stormwater pollution prevention practices; [¶] []does not pour oil and grease or oil and grease
residue onto a parking lot, street or adjacent catch basin; [¶] [] keeps the trash bin area clean
and trash bin lids closed, and does not fill trash bins with washout water or any other liquid;
[¶] [] does not allow illicit discharges, such as discharge of washwater from floormats, floors,
porches, parking lots, alleys, sidewalks and street areas (in the immediate vicinity of the
establishment), filters or garbage/trash containers; [¶] [] removes food waste, rubbish or
other materials from parking lot areas in a sanitary manner that does not create a nuisance or
discharge to the storm drain.‖
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With respect to automotive service facilities, the Permit required that each permittee
―inspect all automotive service facilities within its jurisdiction to confirm that stormwater
BMPs are effectively implemented.‖ At each automotive service facility, inspectors were to
verify that each operator: ―maintains the facility area so that it is clean and dry without
evidence of excessive staining; [¶] [] implements housekeeping BMPs to prevent spills and
leaks; [¶] [] properly discharges wastewaters to a sanitary sewer and/or contains wastewaters
for transfer to a legal point of disposal; [¶] [] is aware of the prohibition on discharge of non-
stormwater to the storm drain; [¶] [] properly manages raw and waste materials including
proper disposal of hazardous waste; [¶] [] protects outdoor work and storage areas to prevent
contact of pollutants with rainfall and runoff; [¶] [] labels, inspects, and routinely cleans
storm drain inlets that are located on the facility‘s property; and [¶] [] trains employees to
implement stormwater pollution prevention practices.‖
With respect to retail gasoline outlets and automotive dealerships, the Permit required
each permittee to confirm that BMP‘s were being effectively implemented at each retail
gasoline outlet and automotive dealership within its jurisdiction. The permittee was to verify
that each operator: ―routinely sweeps fuel-dispensing areas for removal of litter and debris,
and keeps rags and absorbents ready for use in case of leaks and spills; [¶] [] was aware that
washdown of facility area to the storm drain is prohibited; [¶] [] [was] aware of design flaws
(such as grading that does not prevent run-on, or inadequate roof covers and berms), and that
equivalent BMP‘s are implemented; [¶] [] inspects and cleans storm drain inlets and catch
basins within each facility‘s boundaries no later than October 1st of each year; [¶] [] posts
signs close to fuel dispensers, which warn vehicle owners/operators against ‗topping off‘ of
vehicle fuel tanks and installation of automatic shutoff fuel dispensing nozzles; [¶] []
routinely checks outdoor waste receptacle and air/water supply areas, cleans leaks and drips,
and ensures that only watertight waste receptacles are used and that lids are closed; and [¶] []
trains employees to properly manage hazardous materials and wastes as well as to implement
other stormwater pollution prevention practices.‖
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B. Industrial Facilities. (Part 4C2b)
Generally, the Permit required inspections twice during the five-year term of the
Permit, with more than one year between inspections. Each permittee was required to confirm
that each operator had ―a current Waste Discharge Identification (WDID) number for facilities
discharging stormwater associated with industrial activity, and that a Storm Water Pollution
Prevention Plan is available on-site,‖ and the facility was effectively implementing the plan.
C. Construction Facilities. (Part 4E)
The Permit required each permittee to implement a program to control runoff from
construction activity: ―Sediments generated on the construction site were to be retained using
adequate Treatment Control and Structural BMP‘s‖; construction related materials, spills, and
residues were to be contained at the construction site to avoid runoff to streets; nonstormwater
runoff from equipment and vehicle washing was to be retained at the site; erosion from slopes
and channels was to be controlled by implementing BMP‘s, such as limiting grading during
the wet season, inspecting graded areas during rain, planting and maintenance of slopes, and
covering erosion susceptible slopes. For sites one acre or larger, each was to be inspected a
minimum of once during the wet season.
D. Trash Receptacles. (Part 4F5c3)
The trash receptacle requirement at Part 4, Special Provisions, F. Public Agency
Activities Program, 5. Storm Drain Operation and Management, c (Part 4F5c3) required trash
receptacles to be placed at all transit stops within the permittee‘s jurisdiction. ―Permittees not
subject to a trash TMDL[6] shall: [¶]…[¶] (3) Place trash receptacles at all transit stops
within its jurisdiction that have shelters no later than August 1, 2002, and at all transit stops
within its jurisdiction no later than February 3, 2003. All trash receptacles shall be maintained
as necessary.‖
6 Total Maximum Daily Load, or TMDL, is a calculation of the maximum amount
of a pollutant that a waterbody can receive and still safely meet water quality standards.
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D. Proceedings Before the Commission
1. The Hearing
In September 2003, the County of Los Angeles and several cities within the county
filed a test claim.7 The County sought reimbursement for the inspection requirement of
commercial facilities, industrial facilities, and commercial facilities, and the trash receptacle
requirement at parts 4C2a, 4C2b, 4E, and 4F5c3 of the Permit. The Commission initially
refused jurisdiction over the permit based on Government Code section 17516‘s definition of
―executive order‖ that excluded permits issued by the State Board or a regional board. In
County of Los Angeles v. Commission on State Mandates (2007) 150 Cal.App.4th 898,
Division Three of this court held that exclusions of these entities from the definition of an
executive order was unconstitutional. The court issued a writ directing the Commission to
hear the claim on the merits. (Id. at p. 921.) The county and the cities refiled the test claim in
October and November 2007.
The County asserted that it did not have fee authority to collect trash from trash
receptacles that must be placed at transit stops. Further, the County asserted it had no
authority to collect fees to conduct the inspections, and before the state delegated such
inspections, the state had performed them. At the hearing on the test claim held July 31, 2009,
the County presented evidence consisting of:
(1) Several EPA permits for MS4 showed that many of the permits did not contain a
trash receptacle requirement;
(2) The trash receptacle obligation was new and had not been included in prior permits
issued by the Regional Board that were approved by the EPA;
7 Originally, test claims 03-TC-04 (Transit Trash Receptacles) and 03-TC-19
(Inspection of Industrial/Commercial Facilities) were filed by the County of Los Angeles in
September 2003. Test claim 03-TC-21 (Stormwater Pollution Requirements) was filed by the
Cities of Baldwin Park, Bellflower, Cerritos, Covina, Downey, Monterey Park, Pico Rivera,
Signal Hill, South Pasadena, and West Covina on September 30, 2003. Test claim 03-TC-20
(Waste Discharge Requirements) was filed by Cities of Artesia, Beverly Hills, Carson, La
Mirada, Monrovia, Norwalk, Rancho Palos Verdes, San Marino, and Westlake Village on
September 30, 2003.
15
(3) Letters dated April and July 2001 from the EPA assertedly stating that the State of
California had the obligation to inspect facilities for state-issued permits;8
(4) Evidence that the Regional Board had previously negotiated with the county to pay
the county to perform inspections of industrial facilities on the Regional Board‘s behalf—
before the Regional Board imposed that requirement on the county and cities without
payment.
The Department of Finance asserted that the Permit did not impose a reimbursable
mandate because the Permit conditions imposed on the local agencies were required under the
NPDES program and were enforceable under the federal Clean Water Act. The Department
of Finance also argued that the claimants had discretion over the activities and conditions
included in the Permit and thus any resulting costs were ―downstream‖ of the permittee‘s
decision to include the provision and hence not state-mandated.
The County responded that whether or not an agency places trash receptacles at transit
stops was not relevant to the mandate determination because if a local agency has been
incurring costs that are later mandated by the state, such costs are reimbursable as a mandate.
Further, the inspection duties were imposed for state-permitted industrial and commercial
facilities and construction sites, and the state had been responsible for such inspections since
1969 under the Porter-Cologne Act; and the inspections were not required under the Clean
Water Act.
2. The Commission’s Conclusions
(a) Not Discretionary
The Commission found that because the permittees were required by state and federal
law to obtain the Permit, it was not discretionary.
(b) Not a Federal Mandate
The Commission observed that ―[w]hen federal law imposes a mandate on the state,
however, and the state ‗freely [chooses] to impose the costs upon the local agency as a means
8 The letters state that the local government and the state have a tandem duty to
insure inspection requirements are fulfilled.
16
of implementing a federal program, then the costs are the result of a reimbursable state
mandate regardless whether the costs were imposed upon the state by the federal
government,‘‖ citing Hayes, supra, 11 Cal.App.4th at page 1593 and Government Code
section 17556, subdivision (c).9 Further, the Commission found the state could enforce its
own water quality laws as long as such laws were as stringent as the Clean Water Act. (33
U.S.C. § 1342(p)(3)(B)(iii).)
(i) Trash Receptacles
The Commission found the trash receptacle obligation was not a federal mandate
because federal law contained no such requirement, nor did federal law require inspections of
restaurants, automotive facilities, or retail gasoline outlets. The Commission observed that
nothing in the Clean Water Act indicated that California was required to have a NPDES
program or issue stormwater permits; the EPA would require permits if California had no
such program. Further, the plain language of the federal regulation at 40 Code of Federal
Regulations, part 122.26(d)(2)(iv)(A)(3) was generally worded to require ―[a] description of
practices for operating and maintaining public streets, roads and highways and procedures for
reducing the impact on receiving waters of discharges from municipal storm sewer systems,
including pollutants discharged as a result of deicing activities‖ and this language did not
require the permittees to install and maintain trash receptacles at transit stops. The
Commission relied on Long Beach Unified Sch. Dist. v. State of California (1990) 225
Cal.App.3d 155 (Long Beach Unified) for the proposition that NPDES permits may contain a
state mandate even though they are formulated to comply with federal law. In Long Beach
Unified, Division Five of this court held that although the school district was under a federal
constitutional obligation to desegregate schools, the state executive order promulgating
regulations providing desegregation guidelines to schools was a state mandate because it
9 Government Code section 17556, subdivision (c), states that the Commission
shall not find costs mandated by the state if ―[t]he statute or executive order imposes a
requirement that is mandated by a federal law or regulation and results in costs mandated
by the federal government, unless the statute or executive order mandates costs that
exceed the mandate in that federal law or regulation.‖
17
required specific actions to be taken that went beyond the federal constitutional obligation as
set forth in case law. (Long Beach Unified, at p. 173.) The Commission found that as in Long
Beach Unified, the Permit‘s mandates went beyond federal requirements and thus constituted
a state mandate.
(ii) Inspection Requirement.
With respect to the inspection obligations of commercial, industrial and construction
facilities, the Commission analyzed the requirements of 40 Code of Federal Regulations, part
122.26(d)(2)(iv)(B) and (C). Those sections generally required the ―description of a program,
including inspections, to implement and enforce an ordinance, orders or similar means to
prevent illicit discharges to the municipal separate storm sewer system,‖ (40 C.F.R.
§ 122.26(d)(2)(iv)(B)(1)), or a requirement that permittees ―[i]dentify priorities and
procedures for inspections and establishing and implementing control measures for such
discharges.‖ (40 C.F.R. § 122.26(d)(2)(iv)(C)(1)). However, the federal regulations
contained no express requirement to inspect restaurants, automotive service facilities, retail
gasoline stations, automobile dealerships, or construction and industrial sites. Thus, this
requirement was not a federal mandate.
The Commission also found that this same language in 40 Code of Federal
Regulations, part 122.26(d)(2)(iv)(B)(1) and (C)(1) did not prevent the state, rather than local
agencies, from inspecting industrial facilities. The statewide GIASP was administered by the
State Board, and the State Board collected fees for the regional boards for performing
obligations under the GIASP pursuant to Water Code section 13260, subd. (d)(2)(B)(ii). The
Commission found that ―[i]nasmuch as the federal regulation (40 C.F.R. § 122.26(c))
authorizes coverage under a statewide general permit for the inspections of industrial
activities, and the federal regulation (40 C.F.R. § 122.26(d)(2)(iv)(D)) does not expressly
require those inspections to be performed by the county or cities (or the ‗owner or operator of
the discharge‘), . . . the state has freely chosen to impose these activities on the permittees‖
and no federal mandate existed. (Fn. omitted.)
18
(c) ―New Program‖ or ―Higher Level of Service‖
With respect to whether the Permit requirements ―imposed a new program or a higher
level of service,‖ the Commission observed that to determine whether the permit is a new
program or higher level of service, it needed to compare the Permit to the legal requirements
in effect immediately before its adoption. In that regard, the Commission found that local
agencies were not required by state or federal law to place and maintain trash receptacles at
transit stops before the permit was adopted, as a result, it was a new program or higher level
of service to place trash receptacles at transit stops and maintain them as specified in the
permit.
For the same reason, the Commission found that the inspections and enforcement
duties at industrial and commercial facilities, including restaurants, automotive service
facilities, retail gasoline outlets, and automotive dealerships, was a new program or higher
level of service because these were not required activities of the permittees prior to the
permit‘s adoption.
E. Proceedings Before the Trial Court
1. Petition and Cross-Petition
On February 17, 2011, the Department of Finance, the State Board, and the Regional
Board filed a petition for administrative mandamus pursuant to Code of Civil Procedure
section 1094.5 against the Commission, with the County of Los Angeles and the cities of
Artesia, Azusa, Bellflower, Beverly Hills, Carson, Commerce, Covina, Downey, Monterey
Park, Norwalk, Rancho Palos Verdes, Signal Hill, Vernon, and Westlake Village as real
parties in interest.
The Department of Finance argued that that the Permit was a federal mandate and not
subject to subvention because California‘s administration of the mandate did not transform the
Clean Water Act requirements into a state mandate. Under City of Sacramento, supra, 50
Cal.3d at pages 73–74, ―certain regulatory standards imposed by the federal government
under ‗cooperative federalism‘ schemes are coercive on the states and localities in every
practical sense‖; similarly here, the NDPES program was coercive on the state and local
19
governments because regardless of whether the state or the EPA issued the Permit, it was not
voluntary because the County had to comply with the maximum extent practicable standards
and thus the Permit did not constitute a shifting of state costs to localities. Congress
established the maximum extent practicable standard because municipal storm water runoff,
unlike other pollutant discharges, could not be adequately addressed by blanket effluent
limitations. Thus, the Commission erred in ignoring this standard and by looking solely to
federal statutes and regulations to define the scope of federal law. Finally, the Department of
Finance argued the Regional Board‘s findings regarding what was necessary to implement the
maximum extent practicable standard had previously been litigated in County of Los Angeles
v. State Water Resources Control Bd. (2006) 143 Cal.App.4th 985 and previously upheld by
Division Five.
The County argued that it did not have fee authority to pay for the trash receptacles or
the inspections, and the State Board‘s fee for inspections of industrial and construction
facilities preempted any fee the County might charge. The cities of Bellflower, Carson,
Commerce, Covina, Downey and Signal Hill argued that the Commission properly applied the
maximum extent practicable standard; whether the activities constituted a state mandate was
within the Commission‘s purview, not the Regional Board‘s, and the Commission‘s decision
was supported by substantial evidence. With respect to industrial facilities, the State Board
already administered such facilities through the state-wide GIASP, which required the state to
enforce its provisions; the State Board could collect fees to cover inspections of such
facilities, the Regional Board entered into a contract in 2001 whereby the Regional Board paid
the County to conduct inspections; and the plain language of the governing statutes and
regulations do not require inspections. With respect to construction sites, the State Board
already administered such facilities through the state-wide GCASP, which is enforced by the
state and authorizes the State Board to collect fees for inspections; the inspection obligation
was not in prior permits, and the plain language of the governing statutes and regulations do
not require inspections.
20
In reply, the Department asserted that the maximum extent practicable standard
governed whether the mandate was of federal or state origin, and there was no evidence the
Permit requirements went beyond federal law. The mere fact the standard was flexible did not
mean that the Permit exceeded those standards, and asserted the EPA requirements were not
determinative under the Clean Water Act because under federal law, each permit must be
tailored to the unique surroundings of the waterways: the language of Title 33 United States
Code section 1342(p)(3)(B)(iii) contemplates that, because of the fundamentally different
characteristics of many municipalities, municipalities will have permits tailored to meet
particular geographical, hydrological, and climactic conditions. (55 Fed. Reg. 47990, 48053
(Nov. 16, 1990).) Further, the fact prior permits did not have the requirements of the most
recent permit was not relevant because a new permit must be at least as stringent as the prior
one (33 U.S.C. § 1342(o); 40 C.F.R. § 122.44(l)), and the EPA anticipates that stormwater
management will evolve over time.
The County of Los Angeles and the cities of Bellflower, Carson, Commerce, Covina,
Downey and Signal Hill filed a cross-petition10 for writ of administrative mandamus,
challenging the Commission‘s finding that although the inspection requirements of parts
4C2a, 4C2b, and 4E were state mandates, the County had the authority to levy fees pursuant to
Government Code section 17556, subdivision (d) to pay for such programs and was thus not
entitled to subvention.
2. Trial Court’s Statement of Decision
On August 15, 2011, the trial court issued its statement of decision in which it found
the trash receptacle requirement was a federal mandate. The trial court rejected the
Commission‘s conclusion that the state freely chose to implement the NPDES permit as
legally incorrect because the fact that California was not required to issue permits and
voluntarily did so did not lead to the conclusion the NPDES program was optional and thus
mandated by the state. The trial court rejected the argument that there needed to be a federal
10The petition and cross-petition were initially filed in Sacramento County, but
were transferred to Los Angeles County.
21
regulation particularly on point for the activity to be mandated because such an argument
ignored and misplaced the flexibility built into the federal maximum extent practicable
standard. Thus, the trial court found the Commission erred in isolating specific requirements
to conclude that the Permit was a state mandate because one permit provision could not
exceed the maximum extent practicable standard where the Regional Board had concluded the
permit as a whole did not. The failure to include these provisions in prior permits did not
convert the requirements into state mandates due to the evolving nature of the Clean Water
Act‘s requirements. Further, the inspection requirements were likewise pursuant to the
maximum extent practicable standard of the Clean Water Act and hence federal mandates. ―A
federal mandate does not require explicit mention of every mandated activity. Rather, the
relevant inquiry is whether these inspection activities fall within the Clean Water Act‘s
maximum extent practicable standard. As there is nothing in the record to suggest that they
exceed this standard, the Commission‘s conclusions to the contrary must fail.‖ The trial court
did not address the County‘s cross-petition, but noted that it would fail for the same reasons as
the petition.11
The court entered judgment granting the petition, and remanded the matter to the
Commission to set aside and vacate its decision.
DISCUSSION
I. Standard of Review
In reviewing the Commission‘s decision under Code of Civil Procedure section
1094.5, the trial court determines whether the agency proceeded in excess of jurisdiction,
there was a fair hearing, and there was any prejudicial abuse of discretion. (Code Civ. Proc.,
§ 1094.5, subd. (b).) Abuse of discretion is established if the Commission has not proceeded
in the manner required by law, the order or decision is not supported by the findings, or its
findings are not supported by substantial evidence. (Voices of the Wetlands v. State Water
11 The County does not challenge the denial of the cross-petition in this appeal.
22
Resources Control Bd. (2011) 52 Cal.4th 499, 516; Fukuda v. City of Angels (1999) 20
Cal.4th 805, 810.)
We presume the Commission‘s findings and actions are supported by substantial
evidence. (Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 335–336;
McAllister v. California Coastal Com. (2008) 169 Cal.App.4th 912, 921–922.) We resolve all
conflicts in the evidence and draw all legitimate and reasonable inferences in favor of the
decision made by the trial court. Where the evidence supports multiple inferences, we may
not substitute our deductions for those made by the trial court. The trial court‘s factual
findings only may be disturbed if the evidence, as a matter of law, is insufficient to support
them. (Arthur v. Department of Motor Vehicles (2010) 184 Cal.App.4th 1199, 1205.)
The trial court‘s conclusions and disposition of the issues are not conclusive, and we
and the trial court ―must determine whether the record is free from legal error.‖ (Alberstone v.
California Coastal Com. (2008) 169 Cal.App.4th 859, 863.) We examine the interpretation of
legal matters utilizing a de novo standard of review. (County of Los Angeles v. State Water
Resources Control Bd., supra, 143 Cal.App.4th at p. 997.)
II. Federal Mandates and “Maximum Extent Practicable”
The County contends that the trial court erred in finding that the Permit obligations
were federal mandates because (1) the court in County of Los Angeles v. Commission on State
Mandates, supra, 150 Cal.App.4th 898, previously determined the mandate issue; (2) the trial
court erred in finding that the Commission failed to consider the maximum extent practicable
standard; and (3) the Commission‘s decision is supported by substantial evidence.
Specifically, the County argues that the trial court failed to analyze whether the
Regional Board specifically included certain activities not required by the federal regulations,
and erred in failing to do so because the relevant federal regulations do not require
inspections. The County asserts that in Long Beach Unified, supra, 225 Cal.App.3d 155, the
court held that a state mandate may arise if the state, in implementing a federal requirement,
requires specific actions and imposes additional burdens on a local agency beyond the federal
requirements. (Id. at pp. 172–173.) As a result, the County contends, the Permit‘s inspection
23
obligations exceeded the scope of the federal regulations, both in number and required content
of the inspections as well as the type of facilities to be inspected. (See, e.g., 40 C.F.R.
122.26(d)(2)(iv)(B), (C) & (D).) Further, in Hayes, the court held that even where federal law
imposes a mandate, if the state freely chooses to shift responsibility for compliance from itself
to a local agency, the resulting costs are a state mandate regardless of whether the costs were
imposed upon the state by the federal government. (Hayes, supra, 11 Cal.App.4th at
pp. 1593–1594.) However, the County contends, the trial court failed to apply this analysis,
and if it had, it would have found that the Regional Board had a choice whether to impose the
inspection obligations. First, under the Porter-Cologne Act, the Regional Board had the
authority to regulate the discharge of pollutants into waterways. (See, e.g., Wat. Code,
§§ 13050, subds. (d), (e), 13260, 13263.) In addition, the Porter-Cologne Act authorizes the
Regional Board to require any person to furnish technical and monitoring reports describing
discharges into waterways. (See Wat. Code, § 13267, subds. (b), (c).) The Porter-Cologne
Act does not exempt commercial, industrial, or construction facilities from its reach. Finally,
the Regional Board had the obligation to enforce the GIASP and GCASP pertaining to
construction and industrial sites, which contain provisions for inspections. Under both GIASP
and GCASP, the state can impose inspection fees. (See, e.g., Wat. Code, § 13260,
subd. (d)(1)(A).)
The Department of Finance contends that the trial court correctly found that reliance
on Long Beach Unified, supra, 225 Cal.App.3d 155 was misplaced because in that case, a
state mandate was found because there was no federal law specifying how desegregation of
schools should take place. (Id. at p. 173.) In contrast, applicable to the Permit is the Clean
Water Act specifying the maximum extent practicable standard, and the Commission was
required to analyze the federal maximum extent practicable standard, which it did not. In
addition, the Department of Finance argues that the Regional Board‘s duty to inspect facilities
does not substitute for the County‘s‘ obligations under an NPDES permit, and the state‘s
inspection obligations under GIASP and GCASP impose independent duties to perform
compliance inspections.
24
A. Holding of County of Los Angeles v. Commission on State Mandates
The County contends that in County of Los Angeles v. Commission on State Mandates,
supra, 150 Cal.App.4th 898, the first time this court addressed this case, the Regional Board
argued that the trash receptacle and inspection obligations were federal mandates as a matter
of law, contending that ―the federal mandate nature of its NPDES permits remains constant
although it exercises discretion to control the discharge of pollutants through municipal
stormwater programs not appearing in federal regulations.‖ (Id. at p. 914.) However, the
County contends the court in County of Los Angeles v. Commission on State Mandates
rejected these arguments, finding that because an NPDES permit could contain both federal
and state requirements, whether the requirements constituted state or federal mandates was a
fact question which must be addressed by the Commission. (Id. at pp. 917–918.) As a result
of this holding, the County contends that this court has already rejected the federal mandate
argument as a matter of law. The Department of Finance argues that the Commission should
have deferred to both the Regional Board‘s findings in designing the Permit and the prior
judicial review of those findings. (See County of Los Angeles v. State Water Resources
Control Bd., supra, 143 Cal.App.4th at p. 997.) The Commission, while an expert in
mandate, is not an expert in water quality law.
We disagree. First, County of Los Angeles v. Commission on State Mandates, supra,150 Cal.App.4th 898 did not address the issue of state mandates. The County and certain
cities filed a test claim challenging the Permit. The Commission returned the claims
unadjudicated because they did not involve an executive order subject to subvention under
Government Code section 17516, subdivision (c). (Commission on State Mandates, at
pp. 903–904.) On appeal, the court addressed whether section 17516, subdivision (c) was
unconstitutional because it expressly exempted the Regional Board from the constitutional
state mandate subvention requirement. (Commission on State Mandates, at p. 904.) After
concluding that the statute was unconstitutional (id. at pp. 919–920), the court of appeal found
the trial court properly issued a writ of mandate directing the Commission to review the test
claims. (Id. at p. 921.) As the court did not address the issue of mandates, or make any
25
findings regarding the Permit, County of Los Angeles v. Commission on State Mandates is not
binding on this court. (See Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.)
B. The Maximum Extent Practicable Standard
The County argues that trial court erred in finding that the Commission failed to
consider the maximum extent practicable standard in making its ruling.12 The County asserts
the federal regulations are quite specific; with respect to others, the regulations are more
flexible and leave the design of the permit to the permittees. Thus, according to the County,
the general language of the regulations permits flexibility in designing programs; however,
when the Regional Board demands a specific activity, it removes that flexibility and creates a
mandate. Similarly, amicus CSQA asserts that the federal regulations at issue are flexible and
permit the local agencies to identify and propose the components of the program that they
believe are appropriate for meeting the maximum extent practicable standard. Here, the 2001
Permit removed such flexibility because it included new specific terms and conditions not
found in the prior permits, similar to the situation in Long Beach Unified. Amicus Building
Industry asserts that the EPA‘s reserved veto power does not transform the Regional Board‘s
exercise of discretion into a federal mandate.
12 As a threshold concern, the County asserts that the trial court erroneously
asserted that the MEP standard was a ―technology-forcing requirement designed to foster
innovation,‖ citing Chemical Manufacturer’s Assn. v. NRDC (1985) 470 U.S. 116, 155–
156. We disagree. As explained in Pronsolino v. Marcus (N.D. Cal. 2000) 91 F.Supp.2d
1337, ―[t]he 1972 [Clean Water] Act represented a major shift in enforcement policy—
away from primary reliance on water-quality standards and toward primary reliance on
specific effluent limits on all point sources, the latter being any discernible, confined and
discrete conveyance such as a pipe or ditch. [Citation] The [Clean Water] Act
established the National Pollution Discharge Elimination System (‗NPDES‘) and required
an NPDES permit for any discharge by any point source into any navigable water of the
United States, interstate or intrastate. The new strategy sought to force the best
technology practicable or achievable on dischargers. . . . Instead of solely working
backwards from the water-quality standards to develop acceptable levels of effluent from
point sources, the new lead strategy was to require point sources to employ state-of-the-
art treatment, even if it led, as a happy circumstance, to even cleaner water than called for
by the standards.‖ (Id. at p. 1341.)
26
The Department of Finance counters that the Commission‘s analysis ignored the
maximum extent practicable standard entirely. Instead, the Commission looked only to
whether federal law specifically required certain individual measures to be in the Permit. As a
result, the Commission‘s analysis erroneously found that where the federal regulations
imposed a flexible standard, any state action to implement the federal mandate is
automatically converted into a state mandate.
1. Federal Mandates
The subvention requirement of article XIII B, section 6 is triggered if ―the Legislature
or any state agency‖ mandates a new program or higher level of service. (Cal. Const., art.
XIII B, § 6.) Subvention is inapplicable where the additional costs on local governments are
imposed by a federal mandate, i.e., the federal government. Article XIII B, section 9,
subdivision (b), defines federally mandated appropriations as those ―required to comply with
mandates of the courts or the federal government which, without discretion, require an
expenditure for additional services or which unavoidably make the provision of existing
services more costly.‖ In 1980, after the adoption of article XIII B, the Legislature amended
the statutory definition of ―costs mandated by the federal government‖ to provide that such
costs included ―‗costs resulting from enactment of a state law or regulation where failure to
enact such law or regulation to meet specific federal program or service requirements would
result in substantial monetary penalties or loss of funds to public or private persons in the
state.‘‖ (City of Sacramento, supra, 50 Cal.3d at p. 75, italics omitted.)
As the case before us demonstrates, there is no precise rule or formula for determining
whether a cost imposed on a local government or agency is a federal mandate. ―Given the
variety of cooperative federal-state-local programs, we here attempt no final test for
‗mandatory‘ versus ‗optional‘ compliance with federal law. A determination in each case
must depend on such factors as the nature and purpose of the federal program; whether its
design suggests an intent to coerce; when state and/or local participation began; the penalties,
if any, assessed for withdrawal or refusal to participate or comply; and any other legal and
practical consequences of nonparticipation, noncompliance, or withdrawal. Always, the
27
courts and the Commission must respect the governing principle of article XIII B, section
9(b): neither state nor local agencies may escape their spending limits when their participation
in federal programs is truly voluntary.‖ (City of Sacramento, supra, 50 Cal.3d at p. 76.)
In Hayes, supra, 11 Cal.App.4th 1564, two county school superintendents sought
reimbursement for costs incurred in connection with state special education programs enacted
in 1977 and 1980.13 (Id. at pp. 1570–1574.) The counties asserted that the state statutes
imposed special education requirements in excess of the federal Rehabilitation Act of 1973
and the subsequent Education of the Handicapped Act. (Hayes, at pp. 1574–1575.) The
Board of Control (precursor to the Commission) determined that federal statutes were
discretionary, and that the state statutes imposed state-mandated costs in excess of the federal
programs. (Id. at p. 1576.) Hayes observed that ―[i]n order to gain state and local acceptance
of its substantive provisions, the Education of the Handicapped Act employs a ‗cooperative
federalism‘ scheme, which has also been referred to as the ‗carrot and stick‘ approach.
[Citations.] As an incentive Congress made substantial federal financial assistance available
to states and local educational agencies that would agree to adhere to the substantive and
procedural terms of the act.‖ (Id. at p. 1588.)
Finding that the Education of the Handicapped Act imposed a federal mandate under
City of Sacramento, Hayes recognized that while the Education of the Handicapped Act
included certain substantive and procedural requirements which must be included in a state‘s
plan for implementation of the act, it left primary responsibility for implementation to the
state. ―In short, even though the state had no real choice in deciding whether to comply with
the federal act, the act did not necessarily require the state to impose all of the costs of
implementation upon local school districts. To the extent the state implemented the act by
freely choosing to impose new programs or higher levels of service upon local school
districts, the costs of such programs or higher levels of service are state mandated and subject
to subvention.‖ (Hayes, supra, 11 Cal.App.4th at p. 1594.)
13 Statutes 1977, chapter 1247 and Statutes 1980, chapter 797.
28
In Long Beach Unified, supra, 225 Cal.App.3d 155, the state issued an executive order
adopting regulations providing guidelines for school districts to desegregate their schools. (Id.
at p. 165.) The Long Beach Unified School District claimed the costs associated with the
order were state mandates, even though the school district was under a federal constitutional
obligation to desegregate. (Id. at pp. 163, 172.) In spite of this federal constitutional mandate,
Long Beach Unified found a state mandate because the requirements of the executive order
went beyond constitutional and case law requirements because while courts had suggested
that certain steps and approaches may be helpful in complying with federal law, the executive
order and guidelines required specific actions. ―For example, school districts are to conduct
mandatory biennial racial and ethnic surveys, develop a ‗reasonably feasible‘ plan every four
years to alleviate and prevent segregation, include certain specific elements in each plan, and
take mandatory steps to involve the community, including public hearings which have been
advertised in a specific manner.‖ While these steps fit within the federal constitutional
―reasonably feasible‖ standard of United States Supreme Court cases, the steps were ―no
longer merely being suggested as options which the local school district may wish to consider
but are required acts. These requirements constitute a higher level of service.‖ (Id. at p. 173.)
2. The Maximum Extent Practicable Standard
Title 33 United States Code section 1342(p)(3)(B)(iii) provides that 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 system, design and engineering methods, and such other provisions as the
Administrator or the State determines appropriate for the control of such pollutants.‖
The evolution of this section, and the concept of maximum extent practicable, were
discussed at length in Building Industry, supra, 124 Cal.App.4th 866, which observed that
when ―Congress first enacted the Federal Water Pollution Control Act in 1948, it relied
primarily on state and local enforcement efforts to remedy water pollution problems.
[Citations.] However, by the early 1970‘s it became apparent that this reliance on local
enforcement was ineffective and had resulted in the ‗acceleration of environmental
29
degradation of rivers, lakes, and streams . . . . [Citations.] In response, in 1972 Congress
substantially amended [the Clean Water Act] by mandating compliance with various
minimum technological effluent standards established by the federal government and creating
a comprehensive regulatory scheme to implement these laws. [Citation.] The objective of
this law . . . was to ‗restore and maintain the chemical, physical, and biological integrity of the
Nation‘s waters.‘‖ (Building Industry, supra, 124 Cal.App.4th at p. 872; 33 U.S.C.
§ 1251(a).)
As enacted in 1972, the Clean Water Act mandated that an NPDES permit require
compliance with state water quality standards and that this goal be met by setting forth a
specific ―effluent limitation,‖ which is a restriction on the amount of pollutants that may be
discharged at the point source. (33 U.S.C. §§ 1311, 136(11).) Shortly after the 1972
legislation, the EPA promulgated regulations exempting most municipal storm sewers from
the NPDES permit requirements. However, the District of Columbia Circuit held a storm
sewer is a point source and the EPA did not have the authority to exempt categories of point
sources from the Clean Water Act‘s NPDES permit requirements. (Natural Resources
Defense Council, Inc. v. Costle (D.C. Cir. 1977) 568 F.2d 1369, 1374–1377.) Costle rejected
the EPA‘s argument that effluent-based storm sewer regulation was administratively
infeasible because of the variable nature of storm water pollution and the number of affected
storm sewers throughout the country. Although Costle acknowledged the practical problems
relating to storm sewer regulation, the court found the EPA had the flexibility under the Clean
Water Act to design regulations that would overcome these problems. (Costle, at pp. 1377–
1383.)
During the next 15 years, the EPA made numerous attempts to reconcile the statutory
requirement of point source regulation with the practical problem of regulating possibly
millions of diverse point source discharges of storm water. Eventually, in 1987, Congress
amended the Clean Water Act to add provisions that specifically concerned NPDES permit
requirements for storm sewer discharges. (33 U.S.C. § 1342(p).) In these amendments,
enacted as part of the Water Quality Act of 1987, Congress distinguished between industrial
30
and municipal storm water discharges. With respect to municipal storm water discharges,
Congress clarified that the EPA had the authority to fashion NPDES permit requirements to
meet water quality standards without specific numerical effluent limits and instead to impose
―controls to reduce the discharge of pollutants to the maximum extent practicable . . . .‖ (33
U.S.C. § 1342(p)(3)(B)(iii); Building Industry, supra, 124 Cal.App.4th at p. 884.)
Building Industry, supra, 124 Cal.App.4th 866 observed that section
1342(p)(3)(B)(iii)‘s statutory language and legislative history showed that Congress added the
NPDES storm sewer requirements to strengthen the Clean Water Act by making its mandate
correspond to the practical realities of municipal storm sewer regulation. ―[A]lthough
Congress was reacting to the physical differences between municipal storm water runoff and
other pollutant discharges that made the 1972 legislation‘s blanket effluent limitations
approach impractical and administratively burdensome, the primary point of the legislation
was to address these administrative problems while giving the administrative bodies the tools
to meet the fundamental goals of the Clean Water Act in the context of stormwater pollution.
[Citations.] This legislative history supports that in 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.‖ (Building Industry, at p. 884.)
Building Industry, supra, 124 Cal.App.4th 866 concluded, ―The federal maximum
extent practicable standard is not defined in the Clean Water Act or applicable
regulations . . . . [T]he maximum extent practicable standard is a highly flexible concept that
depends on balancing numerous factors, including the particular control‘s technical feasibility,
cost, public acceptance, regulatory compliance, and effectiveness. . . . [The] maximum extent
practicable standard is a term of art, and is not a phrase that can be interpreted solely by
reference to its everyday or dictionary meaning.‖ (Id. at p. 889.)
31
The maximum extent practicable standard is necessarily flexible given the interplay
between state and federal law and the unique issues presented by large municipal storm sewer
systems. The Clean Water Act uses two water-quality-performance standards by which a
discharger of water may be evaluated: ―effluent limitations‖ and ―water quality standards.‖
(Arkansas v. Oklahoma, supra, 503 U.S. at p. 101.) An effluent limitation is ―any restriction
established by a State or the [EPA] Administrator on quantities, rates, and concentrations of
chemical, physical, biological, and other constituents which are discharged from point sources
into navigable waters . . . .‖ (33 U.S.C. § 1362(11).) An effluent limitation guideline is
determined in light of ―‗the best practicable control technology currently available.‘‖ (Our
Children’s Earth Foundation v. U.S. E.P.A. (9th Cir. 2008) 527 F.3d 842, 849 quoting 33
U.S.C. § 1311(b)(1)(A).)
On the other hand, water-quality standards are state-based and are used as a
supplementary basis for effluent limitations, so that numerous dischargers, despite their
individual compliance with technology-based limitations, can be regulated to prevent water
quality from falling below acceptable levels. (PUD No. 1 of Jefferson County, supra, 511
U.S. at p. 704.) Water-quality standards are developed in a two-step process. First, the EPA,
or state water authorities establish a waterway‘s ―‗[b]eneficial use.‘‖ (Wat. Code, § 13050,
subd. (f); Natural Resources Defense Council v. U.S.E.P.A. (4th Cir. 1993) 16 F.3d 1395,
1400.) Once the beneficial use is determined, water quality criteria that will yield the desired
water conditions are formulated and implemented. (See Natural Resources Defense Council,
at p. 1400; see also 33 U.S.C. § 1313(a), (c)(2)(A); 40 C.F.R. § 131.3(i).)
Unlike effluent limitations, which are promulgated by the EPA to achieve a certain
level of pollution reduction in light of available technology, water-quality standards emanate
from the state boards charged with managing their domestic water resources. (See Arkansas
v. Oklahoma, supra, 503 U.S. at p. 101.) The EPA gives the states guidance in drafting water-
quality standards and ―state authorities periodically review water quality standards and secure
the EPA‘s approval of any revisions in the standards.‖ (Ibid.)
32
Finally, the maximum extent practicable standard is designed to require states to meet
their Clean Water Act obligations. In Environmental Defense Center, Inc. v. U.S.E.P.A. (9th
Cir. 2003) 344 F.3d 832 (Environmental Defense Center), the Ninth Circuit considered a
challenge to a ―Phase II‖ EPA rule for small municipal storm sewer systems. Among other
things, the Phase II Rule allowed small municipal storm sewer systems to seek permission to
discharge pollutants by submitting an individualized set of best management practices
designed by each municipal storm sewer system (―stormwater management plans‖), either in
the form of an individual permit application or in the form of a notice of intent (NOI) to
comply with a general permit. (Id. at p. 842.) As long as an NOI included a stormwater
management plan, the EPA deemed a municipal storm sewer system to be in compliance with
the relevant standards of the Clean Water Act, including the standard that municipal
stormwater pollution be reduced to the ―maximum extent practicable.‖ (Id. at p. 855; 33
U.S.C. § 1342(p)(3)(B)(iii); 40 C.F.R. § 123.35.) The Phase II Rule did not require NPDES
authorities to review the stormwater management plans themselves. The Ninth Circuit held,
however, that the failure to require permitting authority review of the stormwater management
plans violated the Clean Water Act. While the Ninth Circuit lauded the involvement of
regulated parties in the development of individual stormwater pollution control programs, it
emphasized that ―programs that are designed by regulated parties must, in every instance, be
subject to meaningful review by an appropriate regulating entity to ensure that each such
program reduces the discharge of pollutants to the maximum extent practicable [i.e., the
relevant statutory standard].‖ (Environmental Defense Center, at p. 856.) The Phase II Rule,
by contrast, failed to require that the relevant permitting authorities review the stormwater
management plans to ―ensure that the measures that any given operator of a [small municipal
storm sewer system] has decided to undertake will in fact reduce discharges to the maximum
extent practicable.‖ (Id. at p. 855.) Accordingly, Environmental Defense Center held the
Phase II Rule provided no safeguard against a municipal storm sewer system‘s
―misunderstanding or misrepresenting its own stormwater situation and proposing a set of
minimum measures for itself that would reduce discharges by far less than the maximum
33
extent practicable.‖ (Ibid.) The Ninth Circuit concluded that the EPA‘s failure to require
review of NOI‘s and the EPA‘s failure to make NOI‘s available to the public or subject to
public hearings contravened the express requirements of the Clean Water Act, and vacated
those portions of the Phase II Rule that addressed procedural issues relating to the issuance of
NOI‘s under the small municipal storm sewer general permit option, and remanded to the
EPA to permit the EPA to take appropriate action to comply with the Clean Water Act. (Id. at
pp. 858, 879.)
Balancing the standards of Building Industry, supra, 124 Cal.App.4th 866, we
conclude the Permit‘s requirements for the trash receptacles and inspection of
commercial, industrial, and construction sites as a matter of law constitute federal
mandates. We do not disagree with the holdings of Hayes, supra, 11 Cal.App.4th 1564and Long Beach Unified, supra, 225 Cal.App.3d 155 that as a general proposition, where a
state goes beyond a federal law and imposes additional state-based requirements, a state
mandate may exist to the extent federal law is exceeded. However, Title 33 United States
Code section 1342(p)(3)(B)(iii) is a unique statute and imposes a broad standard in
recognition of developing clean water technology; thus, general-purpose mandate analysis
is of limited utility in the area of clean water law precisely because the Clean Water Act
recognizes that the states function, for practical purposes, as arms of the EPA in
implementing the Clean Water Act. Thus, when a state implements the federal maximum
extent practicable standard in an NPDES permit, we cannot say the state is acting in the
traditional governmental role of a state; rather, although the state provides the
infrastructure necessary to meet clean water standards, it acts on behalf of the EPA in
doing so.
The EPA‘s oversight and veto control of the NPDES program, and the Clean Water
Act‘s goal of permitting each locality to fashion the appropriate measure to address pollution
problems by applying evolving clean water technology, convince us that Building Industry,
supra, 124 Cal.App.4th 866 guides us in evaluating, for purposes of subvention analysis, what
the state may put in its NDPES permit to meet the maximum extent practicable standard and
34
what the federal government requires. The states and local agencies are required by their own
unique waterway conditions to adopt requirements to alleviate pollution; the federal
regulations recognize that the federal government has a limited role in specifying what the
specific measures must be.
Administrative agency decisions come to court with a strong presumption of
correctness based on Evidence Code section 664 that ―official duty has been regularly
performed.‖ (Fukuda v. City of Angels, supra, 20 Cal.4th at p. 812.) ―‗Obviously,
considerable weight should be given to the findings of experienced administrative bodies
made after a full and formal hearing, especially in cases involving technical and scientific
evidence.‘‖ (Ibid., quoting Drummey v. State Bd. of Funeral Directors (1939) 13 Cal.2d
75, 86.) Inherent in a Regional Board‘s determination is a recognition that the specific action
requirements under the Permit have been decided to be within the ―maximum extent
practicable‖ standard of the Clean Water Act. However, this is not to say that any action
requirement that might advance the objectives of the Clean Water Act is automatically within
the maximum extent practicable standard.
In reviewing whether particular mandates fall within the maximum extent practicable
standard, with respect to the trash receptacle and inspection provisions at issue, we apply
Building Industry, supra, 124 Cal.App.4th 866 and balance numerous factors, including the
particular requirement‘s technical feasibility, cost, public acceptance, regulatory compliance,
and effectiveness. (Id. at p. 889.) Trash receptacles are a simple method of keeping
stormwater clean because they prevent trash and other debris from entering storm drains and
entering the ocean and local rivers and drainage canals. Inspections to insure that the
commercial, industrial and construction sites likewise maintain careful practices to prevent
stormwater from becoming contaminated is a first line of defense; indeed, insuring
compliance in these areas places some of the burden for maintaining clean water on private
parties. As a result, those provisions further the state Clean Water Act goal of reducing
pollution to the maximum extent practicable and thus constitute federal mandates. However,
35
given the flexibility and mutability of the maximum extent practicable standard, of necessity
our decision is limited to the specific mandates addressed here.
The County argues that the Regional Board is empowered to enforce the provisions of
the state-issued GIASP and GCASP and to charge fees for inspections under Water Code
section 13260, subdivision (d), and shifted this obligation to the County by including the
inspection requirements in the Permit. We disagree that the Permit improperly shifted the
inspection requirements of the GIASP and GCASP. The County‘s argument assumes
(without evidentiary or logical support) that the inspection obligations in the GIASP and
GCASP are purely state mandates or a combination of federal and state mandates. We
disagree; the GIASP and GCASP expressly and solely provide that they are issued to comply
with the Clean Water Act and EPA regulations. Thus, shifting the federally-mandated GIASP
and GCASP inspection obligations via the Permit‘s inspections could not constitute the
shifting of a state mandate.
C. Substantial Evidence
The County argues that the Commission‘s decision that the trash receptacle obligation
was not a federal mandate was supported by substantial evidence, as was its finding that the
inspection obligations were not federal mandates. We have concluded that the Commission
erred in the first instance in failing to consider the proper legal framework for analyzing the
subvention question, the Permit‘s requirements are not state mandates as a matter of law, and
thus do not reach the issue of whether substantial evidence supports its conclusions.14
14 The Department of Finance contends the court addressed the mandate issue of
the trash receptacles and inspection requirements in an unpublished portion of County of
Los Angeles v. State Water Resources Control Bd., supra, 143 Cal.App.4th 985. To rebut
this argument and to establish that they appropriately raised the issue of unfunded state
mandates, the County requests that we take judicial notice of two orders issued by the
Superior Court in County of Los Angeles v. Regional Quality Control Board for the Los
Angeles Region (2005, No. BS080758), in which the court sustained demurrers to the
County‘s claim that the permit requirements at issue were unfunded state mandates. In
those orders, the trial court held that the appropriate vehicle for challenging the permit
requirements was to file a test claim with the Commission. We take judicial notice of
those documents. (Evid. Code, §§ 452, 459.) We conclude the trial court did not address
36
III. Preemption
Amicus Building Association argues that we should apply federal preemption analysis
to the question and determine that federal law does not preempt state law; therefore, the
additional requirements, being creatures of state law and the Regional Board‘s exercise of its
own discretion, constitute state mandates because they exceed the prior permits. Further,
Building Association argues that the federal statutes and regulations constitute a federal
directive to exercise unfettered state discretion; thus, the proper question before the trial court
was whether the Regional Board exceeded its state discretion when it determined the
maximum extent practicable relative to the MS4 permits. As a result, no MS4 permit would
exceed the maximum extent practicable because that maximum extent practicable is whatever
the Regional Board divines it to be. The Department of Finance responds that federal
preemption is not relevant where the issue to be decided is whether a federal or a state
mandate exists. Rather, the inquiry is on the scope of the requirements of federal law.
―The supremacy clause of the United States Constitution establishes a constitutional
choice-of-law rule, makes federal law paramount, and vests Congress with the power to
preempt state law.‖ (Viva! Internat. Voice for Animals v. Adidas Promotional Retail
Operations, Inc. (2007) 41 Cal.4th 929, 935.) ―There is a presumption against federal
preemption in those areas traditionally regulated by the states.‖ (Id. at p. 938.) Therefore,
―‗[w]e start with the assumption that the historic police powers of the States were not to be
superseded by the Federal Act unless that was the clear and manifest purpose of Congress.‘
[Citations.]‖ (Ibid.) ―There are four species of federal preemption: express, conflict,
obstacle, and field.‖ (Id. at p. 935.)
the issue of whether the Permit‘s requirements were state mandates; rather, the trial court
held that the Commission was the appropriate vehicle for determination of state
mandates. Further, the appellate court in County of Los Angeles v. State Water Resources
Control Bd., supra, 143 Cal.App.4th 985 did not decide the issue. Thus, the opinion was
not binding on the Commission or any other adjudicatory entity on the issue of state
mandates. (See Boeken v. Philip Morris USA, Inc., supra, 48 Cal.4th at p. 797.)
37
As our discussion of the federal mandate issue demonstrates, the Permit, although
issued by a state agency under enabling Water Code provisions, is a federal permit that
implements federal law in the form of the maximum extent practicable standard. As a result,
there is no California law that might be preempted, and federal preemption analysis is
inapposite.
IV. Removal of Commission’s Discretion; Remand
The County contends the trial court erred in reversing the Commission‘s decision; but
even if the Commission erred in its analysis of the test claims, the trial court should have
remanded the matter for further proceedings to permit the Commission to exercise its
discretion properly. (Code Civ. Proc., § 1094.5, subd. (f); National Auto. & Cas. Ins. Co. v.
Downey (1950) 98 Cal.App.2d 586, 594.) The Department of Finance contends remand is
inappropriate because there is nothing for the Commission to exercise its discretion over
because its decision was based upon faulty legal conclusions. As we conclude that the trial
court correctly applied the maximum extent practicable standard and found the Permit‘s
requirements did not, as a matter of law, constitute unfunded state mandates because those
requirements originated in the federal maximum extent practicable standard, remand to the
Commission is unnecessary.
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal.
CERTIFIED FOR PUBLICATION.
JOHNSON, J.
We concur:
MALLANO, P. J.
ROTHSCHILD, J.
38
Appendix A
40 Code of Federal Regulations, part 122.26(d)(2)(iv):
―Proposed management program. A proposed management program covers the
duration of the permit. It shall include a comprehensive planning process which involves
public participation and where necessary intergovernmental coordination, to reduce the
discharge of pollutants to the maximum extent practicable using management practices,
control techniques and system, design and engineering methods, and such other
provisions which are appropriate. The program shall also include a description of staff
and equipment available to implement the program. Separate proposed programs may be
submitted by each coapplicant. Proposed programs may impose controls on a systemwide
basis, a watershed basis, a jurisdiction basis, or on individual outfalls. Proposed
programs will be considered by the Director when developing permit conditions to reduce
pollutants in discharges to the maximum extent practicable. Proposed management
programs shall describe priorities for implementing controls. Such programs shall be
based on:
―(A) A description of structural and source control measures to reduce pollutants
from runoff from commercial and residential areas that are discharged from the municipal
storm sewer system that are to be implemented during the life of the permit, accompanied
with an estimate of the expected reduction of pollutant loads and a proposed schedule for
implementing such controls. At a minimum, the description shall include:
―(1) A description of maintenance activities and a maintenance schedule for
structural controls to reduce pollutants (including floatables) in discharges from
municipal separate storm sewers;
―(2) A description of planning procedures including a comprehensive master plan
to develop, implement and enforce controls to reduce the discharge of pollutants from
municipal separate storm sewers which receive discharges from areas of new
development and significant redevelopment. Such plan shall address controls to reduce
pollutants in discharges from municipal separate storm sewers after construction is
completed. Controls to reduce pollutants in discharges from municipal separate storm
sewers containing construction site runoff are addressed in paragraph (d)(2)(iv)(D) of this
section;
―(3) A description of practices for operating and maintaining public streets, roads
and highways and procedures for reducing the impact on receiving waters of discharges
from municipal storm sewer systems, including pollutants discharged as a result of
deicing activities;
―(4) A description of procedures to assure that flood management projects assess
the impacts on the water quality of receiving water bodies and that existing structural
flood control devices have been evaluated to determine if retrofitting the device to
provide additional pollutant removal from storm water is feasible;
―(5) A description of a program to monitor pollutants in runoff from operating or
closed municipal landfills or other treatment, storage or disposal facilities for municipal
waste, which shall identify priorities and procedures for inspections and establishing and
implementing control measures for such discharges (this program can be coordinated with
the program developed under paragraph (d)(2)(iv)(C) of this section); and
―(6) A description of a program to reduce to the maximum extent practicable,
pollutants in discharges from municipal separate storm sewers associated with the
application of pesticides, herbicides and fertilizer which will include, as appropriate,
controls such as educational activities, permits, certifications and other measures for
commercial applicators and distributors, and controls for application in public right-of-
ways and at municipal facilities.
―(B) A description of a program, including a schedule, to detect and remove (or
require the discharger to the municipal separate storm sewer to obtain a separate NPDES
permit for) illicit discharges and improper disposal into the storm sewer. The proposed
program shall include:
―(1) A description of a program, including inspections, to implement and enforce
an ordinance, orders or similar means to prevent illicit discharges to the municipal
2
separate storm sewer system; this program description shall address all types of illicit
discharges, however the following category of non-storm water discharges or flows shall
be addressed where such discharges are identified by the municipality as sources of
pollutants to waters of the United States: water line flushing, landscape irrigation,
diverted stream flows, rising ground waters, uncontaminated ground water infiltration (as
defined at 40 CFR 35.2005(20)) to separate storm sewers, uncontaminated pumped
ground water, discharges from potable water sources, foundation drains, air conditioning
condensation, irrigation water, springs, water from crawl space pumps, footing drains,
lawn watering, individual residential car washing, flows from riparian habitats and
wetlands, dechlorinated swimming pool discharges, and street wash water (program
descriptions shall address discharges or flows from fire fighting only where such
discharges or flows are identified as significant sources of pollutants to waters of the
United States);
―(2) A description of procedures to conduct on-going field screening activities
during the life of the permit, including areas or locations that will be evaluated by such
field screens;
―(3) A description of procedures to be followed to investigate portions of the
separate storm sewer system that, based on the results of the field screen, or other
appropriate information, indicate a reasonable potential of containing illicit discharges or
other sources of non-storm water (such procedures may include: sampling procedures for
constituents such as fecal coliform, fecal streptococcus, surfactants (MBAS), residual
chlorine, fluorides and potassium; testing with fluorometric dyes; or conducting in storm
sewer inspections where safety and other considerations allow. Such description shall
include the location of storm sewers that have been identified for such evaluation);
―(4) A description of procedures to prevent, contain, and respond to spills that may
discharge into the municipal separate storm sewer;
3
―(5) A description of a program to promote, publicize, and facilitate public
reporting of the presence of illicit discharges or water quality impacts associated with
discharges from municipal separate storm sewers;
―(6) A description of educational activities, public information activities, and other
appropriate activities to facilitate the proper management and disposal of used oil and
toxic materials; and
―(7) A description of controls to limit infiltration of seepage from municipal
sanitary sewers to municipal separate storm sewer systems where necessary;
―(C) A description of a program to monitor and control pollutants in storm water
discharges to municipal systems from municipal landfills, hazardous waste treatment,
disposal and recovery facilities, industrial facilities that are subject to section 313 of
title III of the Superfund Amendments and Reauthorization Act of 1986 (SARA), and
industrial facilities that the municipal permit applicant determines are contributing a
substantial pollutant loading to the municipal storm sewer system. The program shall:
―(1) Identify priorities and procedures for inspections and establishing and
implementing control measures for such discharges;
―(2) Describe a monitoring program for storm water discharges associated with the
industrial facilities identified in paragraph (d)(2)(iv)(C) of this section, to be implemented
during the term of the permit, including the submission of quantitative data on the
following constituents: Any pollutants limited in effluent guidelines subcategories, where
applicable; any pollutant listed in an existing NPDES permit for a facility; oil and grease,
COD, pH, BOD5, TSS, total phosphorus, total Kjeldahl nitrogen, nitrate plus nitrite
nitrogen, and any information on discharges required under § 122.21(g)(7)(vi) and (vii).
―(D) A description of a program to implement and maintain structural and non-
structural best management practices to reduce pollutants in storm water runoff from
construction sites to the municipal storm sewer system, which shall include:
―(1) A description of procedures for site planning which incorporate consideration
of potential water quality impacts;
4
―(2) A description of requirements for nonstructural and structural best
management practices;
―(3) A description of procedures for identifying priorities for inspecting sites and
enforcing control measures which consider the nature of the construction activity,
topography, and the characteristics of soils and receiving water quality; and
―(4) A description of appropriate educational and training measures for
construction site operators.‖
5