City of Duarte v. State Water Resources Control Bd. ( 2021 )

Filed 2/19/21 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
CITY OF DUARTE,
Plaintiff and Respondent, G058539
v. (Super. Ct. No. 30-2016-00833614)
STATE WATER RESOURCES ORDER MODIFYING OPINION
CONTROL BOARD, et al., AND DENYING REHEARING;
NO CHANGE IN JUDGMENT
Defendants and Appellants.
It is ordered that the opinion filed January 28, 2021, be modified as
follows:
(1) On page 2, in the second full paragraph, at the end of the second
sentence, after the word “upheld,” add:
as a matter of law.
(2) On page 12, in the paragraph beginning “Assuming,” delete the last
sentence and replace it with the following:
We reverse the judgment because, as a matter of law, the Water Control
Boards sufficiently considered the necessary factors under Water Code
section 13241.
(3) On page 14, the paragraph that carries over from page 13, line 5,
following the closed parenthetical, add the following:
(We note that both Arcadia I and Arcadia II followed and applied City of
Burbank v. State Water Resources Control Bd.)
(4) On page 15, in the first paragraph under subheading 3., delete the first
sentence and replace it with the following:
We conclude that the Water Control Boards sufficiently complied with their
obligations to consider the Water Code section 13241 factors as a matter of
law.
(5) On page 17, in the final paragraph that begins “Duarte contends,” delete
the first sentence and replace it with the following:
As noted ante, to comply with Water Code section 13241, the Regional
Board must consider the costs of compliance in setting effluent limitations.
(City of Burbank v. State Water Resources Control Bd. (2005) 35 Cal.4th
613, 625.) An issue in this case is whether the Water Control Boards
sufficiently analyzed cost considerations. Duarte contends the Water
Control Boards were required to do a more detailed analysis for each and
every Permittee.
(6) On page 18, at the end of the paragraph that carries over from page 17,
add the following new paragraph:
In a petition for rehearing, Duarte contends our holding cannot be
reconciled with the California Supreme Court’s decision in City of Burbank
v. State Water Resources Control Bd., supra, 35 Cal.4th 613. But Duarte’s
characterization of our holding is demonstrably wrong. To repeat, this
opinion concludes that the Water Control Boards complied with their
obligations to consider the Water Code section 13241 factors, including
compliance costs. Indeed, we have highlighted 11 of the Water Control
2
Boards’ findings regarding their analyses of economic considerations,
including cost considerations.
These modifications do not effect a change in judgment. The petition for
rehearing is DENIED.
FYBEL, J.
WE CONCUR:
ARONSON, ACTING P. J.
IKOLA, J.
3
Filed 1/28/21 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
CITY OF DUARTE,
Plaintiff and Respondent, G058539
v. (Super. Ct. No. 30-2016-00833614)
STATE WATER RESOURCES OPINION
CONTROL BOARD et al.,
Defendants and Appellants.
Appeal from a judgment of the Superior Court of Orange County, Glenda
Sanders, Judge. Reversed and remanded with directions. Appellants’ request for judicial
notice. Denied. Amici Curiae’s request for judicial notice. Denied. Respondent’s
motion to augment the record on appeal. Denied.
Xavier Becerra, Attorney General, Robert W. Byrne, Assistant Attorney
General, Gary E. Tavetian, Daniel M. Lucas and Jennifer Kalnins Temple, Deputy
Attorneys General, for Defendants and Appellants.
Rutan & Tucker, Richard Montevideo and Travis Van Ligten for Plaintiff
and Respondent.
Aleshire & Wynder and Christine M. Carson for the Cities of Lawndale,
Rancho Palos Verdes, Glendora, and Signal Hill as Amici Curiae on behalf of Plaintiff
and Respondent.
* * *
INTRODUCTION
This appeal involves a permit issued by state and local water control boards
that requires 86 Southern California municipalities to reduce or prevent pollutants
discharged through storm sewer systems by meeting numeric effluent limitations. The
trial court found that, because the permit obligated the municipalities to meet more
stringent standards than required by federal law, the water boards must consider the
factors identified in Water Code section 13421, including but not limited to economic
considerations, before issuing the permit. The trial court also found that the water boards
had not sufficiently considered the section 13241 factors, and invalidated the portions of
the permit that imposed the numeric effluent limitations.
For purposes of this appeal, we assume but do not decide that the permit
required more than what federal law requires and, therefore, we must review the water
boards’ consideration of the Water Code section 13241 factors. As to those factors, we
hold that, under the applicable standard of review, and giving appropriate consideration
to the state and local water boards’ expertise and discretion in the interpretation of the
statute, the permit’s numeric effluent limitations must be upheld. We publish this
opinion because we believe it is important to provide an example of the level of
consideration of the factors that is sufficient—especially the economic considerations
factor that is not defined by section 13241. Our analysis of the issues under consideration
by the water boards leads us to conclude their consideration of the relevant factors,
identified in part II.B. of the Discussion section, was sufficient.
2
We reverse the judgment and direct the trial court to deny the petition for
writ of mandate and enter judgment in favor of Appellants the State Water Resources
Control Board and the Regional Water Quality Control Board, Los Angeles Region.
BACKGROUND
I.
CALIFORNIA’S WATER CODE AND THE FEDERAL CLEAN WATER ACT
In 1969, California enacted the Porter-Cologne Water Quality Control Act
(Wat. Code, § 13000 et seq.) to create “a statewide program for the control of the quality
of all the waters of the state.” (Id., § 13000.) “[A]ctivities and factors which may affect
the quality of the waters of the state shall be regulated to attain the highest water quality
which is reasonable, considering all demands being made and to be made on those waters
and the total values involved, beneficial and detrimental, economic and social, tangible
and intangible.” (Ibid.)
In 1972, the federal government enacted the Federal Water Pollution
Control Act (33 U.S.C. § 1251 et seq.), known as the Clean Water Act, “to restore and
maintain the chemical, physical, and biological integrity of the Nation’s waters.” (Id.,
§ 1251(a).) The Clean Water Act requires that California regularly review water quality
standards and set controls necessary to support the designated beneficial uses of the
bodies of water within the state. (33 U.S.C. § 1313(c), (d); Wat. Code, §§ 13050,
subd. (h), 13241; 40 C.F.R. §§ 130.2(d), 130.3.) The Clean Water Act prohibits the
discharge of pollutants through a “point source” into navigable waters unless the
discharge is pursuant to a National Pollutant Discharge Elimination System (NPDES)
permit. (33 U.S.C. §§ 1311(a), 1342.)
Municipal separate storm sewer systems (MS4s) are point sources requiring
an NPDES permit. (33 U.S.C. § 1342(p)(3)(B); 40 C.F.R. § 122.26(a)(iii).) MS4s are
designed to collect storm water, which consists of “storm water runoff, snow melt runoff,
and surface runoff and drainage.” (40 C.F.R. § 122.26(b)(13).) As noted in the permit at
3
issue in this case, storm water discharges must be regulated because they “are often
contaminated with pesticides, fertilizers, fecal indicator bacteria and associated
pathogens, trash, automotive byproducts, and many other toxic substances generated by
activities in the urban environment. Water that flows over streets, parking lots,
construction sites, and industrial, commercial, residential, and municipal areas carries
these untreated pollutants through the MS4 directly into the receiving waters of the
Region. The water quality impacts, ecosystem impacts, and increased public health risks
from MS4 discharges that affect receiving waters nationwide and throughout
Los Angeles County, including its coastline, are well documented.”
NPDES permits set water quality-based effluent limitations (WQBELs) that
restrict the amount of pollutants that may be discharged if there is a “reasonable
potential” to cause or contribute to an excursion above the water quality standards.
(40 C.F.R.§ 122.44(a), (d)(1)(iii).) “WQBEL’s implement water quality standards.”
(Communities for a Better Environment v. State Water Resources Control Bd. (2003) 109
Cal.App.4th 1089, 1094.)
If a body of water does not meet the water quality standards, the state must
establish a Total Maximum Daily Load (TMDL) for each pollutant above the applicable
standard. A TMDL sets the total allowable quantity of a pollutant that may be discharged
into a waterway while supporting its beneficial uses. (33 U.S.C. § 1313(d)(1)(A) & (C);
40 C.F.R. § 130.2(i); see San Joaquin River Exchange Contractors Water Authority v.
State Water Resources Control Bd. (2010) 183 Cal.App.4th 1110, 1115.) Thirty-three
(33) TMDLs have been established for MS4 discharges in the Los Angeles region.
II.
EFFLUENT LIMITATIONS
An effluent limitation is a restriction “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).)
4
“Effluent limitations are a means of achieving water quality standards.” (Trustees for
Alaska v. Environmental Protection Agency (9th Cir. 1984) 749 F.2d 549, 557.)
Effluent limitations may either be numeric or based on best management practices
(BMP). (40 C.F.R. § 122.44(k).)
Permits for discharges from MS4s “(i) may be issued on a system- or
jurisdiction-wide basis; [¶] (ii) shall include a requirement to effectively prohibit non-
stormwater discharges into the storm sewers; and [¶] (iii) 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.” (33 U.S.C. § 1342(p)(3)(B).) “The permitting agency has discretion to
decide what practices, techniques, methods and other provisions are appropriate and
necessary to control the discharge of pollutants.” (City of Rancho Cucamonga v.
Regional Water Quality Control Bd. (2006) 135 Cal.App.4th 1377, 1389.)
III.
THE PARTIES AND THE PERMIT AT ISSUE
The State Water Resources Control Board (State Board) is a California
state agency created pursuant to Water Code sections 174 et seq. and 13160 and is
charged with formulating and adopting state policy for water quality control within the
State of California. (Wat. Code, § 13140.) The Regional Water Quality Control Board,
Los Angeles Region (Regional Board), is a regional agency created pursuant to the
provisions of Water Code section 13200 et seq., and is one of nine regional water quality
control boards which operates under the purview of the State Board. (Wat. Code,
§ 13263, subd. (a).) We shall refer to the State Board and the Regional Board together as
the Water Control Boards.
In November 2012, the Regional Board issued an NPDES permit to
86 municipal entities in Los Angeles County (the Permittees), Order No. R4-2012-0175,
5
NPDES Permit No. CAS004001. In June 2015, the State Board upheld the permit with
modifications in Order No. WQ-2015-0075. We shall refer to the modified NPDES
permit as the Permit.
The Permit defines the measures the Permittees must take to prevent or
reduce the amount of pollutants discharged via their MS4s and includes numeric effluent
limitations. The City of Duarte (Duarte), the named petitioner in this case, owns and
operates an MS4 and is one of the Permittees.
In the State Board’s order upholding and modifying the Regional Board’s
2012 permit, the State Board noted that, while all MS4 discharges must reduce pollutants
to the maximum extent practicable, strict compliance with water quality standards by
imposing numeric effluent limitations is at the discretion of the permitting agency. The
State Board further noted that many MS4s within the Los Angeles water basin were not
meeting existing water quality standards using best management practices. Therefore,
the State Board approved the Regional Board’s decision to adopt numeric WQBELs
rather than best management practices -based WQBELs in the Permit.
PROCEDURAL HISTORY
In July 2015, Duarte filed a petition for writ of mandate and complaint for
injunctive and declaratory relief in the Los Angeles County Superior Court. Duarte
alleged that the Water Control Boards failed to proceed as required by law and abused
their discretion in imposing the numeric effluent limitations in the Permit. The City of
Gardena (Gardena) filed a similar petition that same month (the Gardena case); this case
and the Gardena case were deemed to be related, but were not ordered to be consolidated.
In December 2015, pursuant to Water Code section 13361, subdivision (b), the related
cases were transferred to the Orange County Superior Court.
Following motions for judgment on the pleadings, the trial court dismissed
the claims for traditional mandamus, declaratory relief, and injunctive relief, which left
only claims for a peremptory writ of mandate under Code of Civil Procedure
6
section 1094.5. The court conducted a joint trial in this case and the Gardena case on
multiple days between November 2017 and April 2018, and conducted further hearings
on the related matters in July and August 2018.
In April 2019, the trial court issued a detailed amended ruling granting the
petitions for writ of mandate. The trial court found (1) the Permit’s numeric effluent
limitations were more stringent than what is required by federal law; and (2) the Water
Control Boards failed to comply with Water Code section 13241 in adopting the numeric
effluent limitations.
In September 2019, the trial court issued a writ of mandate and a judgment
in favor of Duarte, both of which ordered the Water Control Boards to “[s]et aside each
and every one of the provisions in the Permit pertaining in any way to any and all
1
Numeric Effluent Limits, and to reconsider the Permit.” The Water Control Boards filed
2
a timely notice of appeal.
1
The same language was used in the writ and judgment in the Gardena case.
2
The Water Control Boards filed a request for judicial notice of 27 state regulations
setting TMDLs for various pollutants within the area covered by the Permit. The Water
Control Boards contend these regulations are “relevant to the legal and factual
foundation” for the Permit. According to the Water Control Boards, “the very existence
of the TMDLs triggered federal regulations that require all NPDES permits to contain
‘effluent limitations’ consistent with TMDL wasteload allocations. (40 C.F.R.
§ 122.44(d)(1)(vii)(B); Communities for a Better Env’t v. State Water Resources Control
Bd. (2005) 132 Cal.App.4th 1313, 1322.)” They offer the regulations as “clear and
concise summar[ies] of the adopted regulatory provisions,” which themselves are a part
of the administrative record, and ask that this court take judicial notice only of the
existence of the regulations, and not of the truth of any matter stated within them. State
regulations are proper matters of judicial notice. (Evid. Code, § 452, subd. (b); Center
for Biological Diversity v. County of San Bernardino (2016) 247 Cal.App.4th 326, 345,
fn. 5.) It is undisputed that these regulations are not part of the administrative record or
the appellate record, and were never presented to the trial court. The exhibits attached to
the Water Control Boards’ request for judicial notice appear to be summaries of the
TMDLs in the administrative record. (Compare Request for Judicial Notice, Exh. 1, Cal.
Code Regs., tit. 23, § 3939.6, with RB-AR36087 to RB-AR36093.) Because the TMDLs
are already a part of our record, the summaries from the Code of Regulations would be
duplicative. We therefore deny the Water Control Boards’ request for judicial notice of
7
DISCUSSION
I.
STANDARD OF REVIEW
An aggrieved party may challenge a regional board’s final decision or order
by means of a petition for writ of mandate in the superior court. (Barclay Hollander
Corp. v. California Regional Water Quality Control Bd. (2019) 38 Cal.App.5th 479, 497
(Barclay).) If a claim is made that the regional board’s findings are not supported by the
evidence, then, in accordance with Code of Civil Procedure section 1094.5,
subdivision (c), the court exercises independent judgment on the evidence. (Barclay,
supra, at p. 497.) ‘“In exercising its independent judgment, a trial court must afford a
strong presumption of correctness concerning the administrative findings, and the party
challenging the administrative decision bears the burden of convincing the court that the
administrative findings are contrary to the weight of the evidence.”’ (Ibid.) The regional
board abused its discretion if the court determines, in light of the whole record, that the
board’s findings are not supported by substantial evidence. (Id. at pp. 497-498.)
If the trial court was required to review the administrative decision under
the independent judgment standard, then the appellate court reviews the trial court’s
factual findings under the substantial evidence standard and its legal conclusions under
the de novo standard. (Barclay, supra, 38 Cal.App.5th at pp. 498.) The appellate court is
not bound by legal conclusions made by the state or regional agencies or the trial court;
however, the appellate court must “‘give appropriate consideration to an administrative
Exhibits 1 through 27, filed on May 14, 2020.
8
agency’s expertise underlying its interpretation of an applicable statute.’” (Barclay,
3
supra, 38 Cal.App.5th at p. 498.)
II.
ASSUMING THE PERMIT’S TERMS WERE MORE STRINGENT THAN THE APPLICABLE
FEDERAL LAW, THE WATER CONTROL BOARDS SUFFICIENTLY CONSIDERED THE
NECESSARY FACTORS UNDER WATER CODE SECTION 13241.
All parties agree that the issue in this case is two-fold: (1) Do the numeric
effluent limitations in the Permit require more than is required under federal law?
(2) If so, did the Water Control Boards sufficiently consider the economic considerations
factor required by Water Code section 13241 before issuing the Permit?
A.
WE ASSUME WITHOUT DECIDING THAT THE PERMIT’S TERMS WERE MORE STRINGENT
THAN FEDERAL LAW.
The Water Control Boards found that the numeric effluent limitations in the
Permit were not more stringent than the requirements of the Clean Water Act. On appeal,
3
In the amended ruling, the trial court specifically noted that no party had requested a
statement of decision. We provided the parties with the opportunity to address whether
or not a statement of decision had been requested, and whether and how that would affect
the standard of review. Both the Water Control Boards and Duarte filed supplemental
letter briefs. Having reviewed those letter briefs and considered the arguments,
authorities, and record references therein, we conclude that no party requested a
statement of decision in compliance with the Code of Civil Procedure and California
Rules of Court, rule 3.1590. The scope of our review is therefore limited to determining
whether there is any error of law in the trial court’s decision and whether substantial
evidence supports the judgment. With respect to the express findings in the amended
ruling, the standard of review is the same as if there were a statement of decision; we
shall not infer findings under the doctrine of implied findings. The Water Control Boards
argue that there was a timely request for a statement of decision under the Code of Civil
Procedure and the California Rules of Court, and the trial court erred in failing to issue
one. Even if the Water Control Boards were correct, any error was harmless because the
trial court issued extensive, express findings addressing all controverted issues. Duarte
filed a motion to augment the appellate record in support of its letter brief on the issue of
a statement of decision. In light of the foregoing, we conclude that the motion is moot,
and is therefore denied.
9
they argue this finding was not contrary to the weight of the evidence (Barclay, supra, 38
Cal.App.5th at pp. 497-498) and the trial court should have given it deference.
Duarte argued at trial that the numeric effluent limits in the Permit were
more stringent than what was required by the Clean Water Act, and that the Water
Control Boards were therefore required to consider the factors set forth in Water Code
section 13241. The trial court agreed.
The trial court found that whether the numeric effluent limits imposed by
the Permit were more stringent than the requirements of the Clean Water Act was a
question of law, meaning that the trial court did not have to defer to the Water Control
Boards’ findings on whether the numeric effluent limits were more stringent than the
“maximum extent practicable” standard.
The trial court then noted that the Clean Water Act requires that NPDES
permits be issued for stormwater discharges, but provides different requirements for
industrial discharges and municipal discharges. Whether the Permit’s requirements are
more stringent than federal law focuses on two sections of the Clean Water Act: sections
1311 and 1342 of title 33 of the United States Code. Section 1311 requires that effluent
limitations be established according to specific timetables. Section 1342 authorizes and
establishes the procedures for NPDES permits. NPDES permits for industrial activity
must meet all provisions of both sections 1311 and 1342. (33 U.S.C. § 1342(p)(3)(A).)
Municipal storm sewer discharge permits are not required to comply with section 1311;
rather than cross-referencing the statute regarding effluent limits, section 1342 provides
that municipal permits “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.” (Id.,
§ 1342(p)(3)(B)(iii).)
10
In Defenders of Wildlife v. Browner (9th Cir. 1999) 191 F.3d 1159, the
Ninth Circuit held that the language of the Clean Water Act “unambiguously
demonstrates that Congress did not require municipal storm-sewer discharges to comply
strictly with 33 U.S.C. § 1311(b)(1)(C)” (191 F.3d at p. 1164), and the requirements of
section 1311 are “more stringent” than those of section 1342 (191 F.3d at
pp. 1165-1166). Based on those holdings, the trial court in this case found that the
requirements of the Permit were more stringent than federal law because the Permit
imposed numeric effluent limitations while federal law does not require municipal
dischargers such as the Permittees to comply with numeric effluent limitation
requirements under section 1311 of title 33 of the United States Code.
On appeal, the Water Control Boards argue that “the permit terms did not
exceed federal standards because the imposed terms were necessitated by the Clean
Water Act and federal regulations that require all NPDES permits to include provisions
appropriate for the control of pollutants, including effluent limitations consistent with
applicable [TMDL] wasteload allocations.” The Water Control Boards also argue that
the trial court should not merely have considered whether the numeric effluent limitations
were more stringent than the maximum extent practicable standard because the latter
standard “is not the ceiling for [the] Clean Water Act authority to impose requirements in
an MS4 permit.” The Water Control Boards argue that the trial court should have
deferred to their finding that the numeric effluent limitations were “both appropriate and
necessary for the control of relevant pollutants.”
All parties have fully addressed the issue of whether the terms of the Permit
are more or less stringent than federal law allows. For purposes of this appeal, however,
we need not reach this issue. We shall assume without deciding that the Permit’s
requirement of numeric effluent limitations was more stringent than federal law. This
determination takes us to the second issue presented by this appeal: Whether the Water
11
Control Boards sufficiently considered the necessary factors under Water Code section
13241.
B.
THE WATER CONTROL BOARDS GAVE SUFFICIENT CONSIDERATION TO THE ECONOMIC
EFFECTS OF THE PERMIT’S TERMS.
Assuming the Permit’s numeric effluent limitations were more stringent
than federal law, the Water Control Boards were required to consider the factors set forth
in Water Code section 13241 before issuing the Permit. The trial court found, and Duarte
argues on appeal, that the Water Control Boards failed to sufficiently consider
section 13241, subdivision (d)—economic considerations. Having reviewed the findings
in the Permit, as well as the support for those findings in the appellate record and the
administrative record, we conclude that the Water Control Boards gave sufficient
consideration to the economic effects of the terms imposed by the Permit. As stated
previously, we review the trial court’s factual findings under the substantial evidence
standard and its legal conclusions under the de novo standard, and we are not bound by
justthe legal conclusions made by the state or regional agency or the trial court. (Barclay,
4
supra, 38 Cal.App.5th at p. 498.) We reverse the judgment because the Water Control
Boards properly exercised their discretion in considering the necessary factors under
Water Code section 13241.
1.
Water Code section 13241
The Water Control Boards argue the trial court’s finding that their
consideration of the costs of compliance was insufficient was based on an erroneous
4
Duarte argues that this court must review the trial court’s findings under the substantial
evidence standard, without reference to the Water Control Boards’ findings. Whether an
agency has failed to perform its obligations under a state law is a mixed question of law
and fact.
12
interpretation and application of Water Code section 13241. That statute provides as
follows:
“Each regional board shall establish such water quality objectives in water
quality control plans as in its judgment will ensure the reasonable protection of beneficial
uses and the prevention of nuisance; however, it is recognized that it may be possible for
the quality of water to be changed to some degree without unreasonably affecting
beneficial uses. Factors to be considered by a regional board in establishing water quality
objectives shall include, but not necessarily be limited to, all of the following:
“(a) Past, present, and probable future beneficial uses of water.
“(b) Environmental characteristics of the hydrographic unit under
consideration, including the quality of water available thereto.
“(c) Water quality conditions that could reasonably be achieved through the
coordinated control of all factors which affect water quality in the area.
“(d) Economic considerations.
“(e) The need for developing housing within the region.
“(f) The need to develop and use recycled water.” (Wat. Code, § 13241.)
To comply with Water Code section 13241, subdivision (d), “a regional
board [must] consider the cost of compliance when setting effluent limitations in a
wastewater discharge permit.” (City of Burbank v. State Water Resources Control Bd.
(2005) 35 Cal.4th 613, 625.) However, there is no case law defining “economic
considerations” or describing how an agency may comply with its statutory obligations.
(City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392,
1415 (Arcadia I) [“there is no reported opinion analyzing the ‘economic considerations’
phrase of this statute”].)
The manner in which the Water Control Boards consider and comply with
Water Code section 13241 is within their discretion. (City of Arcadia v. State Water
Resources Control Bd. (2010) 191 Cal.App.4th 156, 177 (Arcadia II) [“Section 13241
13
does not specify how a water board must go about considering the specified factors. Nor
does it require the board to make specific findings on the factors”]; Arcadia I, 135
Cal.App.4th at p. 1415 [because the statute does not define economic considerations or
specify how the agencies should comply with the determination of factors, “the matter is
within a regional board’s discretion”].) We review the Water Control Boards’ exercise of
their discretion under Barclay, supra, 38 Cal.App.5th at pages 497-498.
Further, in reviewing the Water Control Boards’ actions, the trial court had
to presume that all official duties had been regularly performed (Evid. Code, § 664;
Arcadia II, supra, 191 Cal.App.4th at p. 177) and had to review the administrative record
to determine whether there was evidence that the Water Control Boards had failed to
comply with the statutory requirements (Arcadia II, supra, 191 Cal.App.4th at p. 177).
2.
The Trial Court’s Analysis
The trial court found that the Permit did not comply with Water Code
section 13241 because it “does not, at any point, include any reference to or estimate of
the possible cost or range of costs of compliance with numeric WQBELs.” The court
found that the economic considerations included in the Permit consisted only of the costs
of compliance with an earlier permit, costs included in a 2004 study, and an
acknowledgement that “Permittees will incur costs in implementing this Order above and
beyond the costs from the Permittee’s prior permit.” The court found this was
insufficient: “Economic considerations must begin with some kind of estimate of cost.”
The court also found that the Permit’s reference to allowing the Permittees to share costs
of compliance and to phase in implementation in order to avoid significant initial cost
outlays did not address the economic considerations factor of Water Code section 13241.
“[The Water Control Boards’] conclusory findings do not reveal the route from evidence
to action and are inadequate to support compliance with § 13241. Put differently, in the
words of the California Supreme Court, [the Water Control Boards’] decision in
14
approving the 2012 Permit is not supported by facts essential to sustain its decision.
Environmental Protection Information Center [v. California Dept. of Forestry & Fire
Protection (2008) 44 Cal.4th 459,] 516-517.”
The Water Control Boards did not provide estimates of the costs for any of
the individual Permittees to comply with the Permit. Instead, as detailed in the next
section, the Water Control Boards made extensive findings on, among other things, the
nature, extent, ranges, averages, and variability of the costs to be incurred by the
Permittees. The question is whether that level of specificity is necessary to fulfill Water
Code section 13241’s requirement that, in an appropriate case, economic considerations
must be fully considered.
3.
Our Analysis and Conclusion
We conclude that the Water Control Boards sufficiently complied with their
obligations to consider the Water Code section 13241 factors. The Regional Board
developed an economic analysis of the Permit’s requirements, consistent with Water
Code section 13241.
The Permit includes the following findings regarding the analysis of the
economic considerations of both regulating and not regulating MS4 discharges:
(a) “Permittees will incur costs in implementing this Order above and
beyond the costs from the Permittees’ prior permit. Such costs will be
incurred in complying with the post-construction, hydromodification,
Low Impact Development, TMDL, and monitoring and reporting
requirements of this Order.”
(b) The Permit allows Permittees significant flexibility in how to meet the
effluent limitations, which makes it difficult to provide concrete cost
estimates for the Permittees.
15
(c) “[T]he cost of complying with TMDL wasteload allocations has been
previously considered during the adoption of each TMDL. The costs of
complying with the water quality based effluent limitations and
receiving water limitations derived from the 33 TMDLs, which are
incorporated into this Order, are not additive.”
(d) The cost of regulating MS4 discharges is highly variable among the
Permittees.
(e) The Regional Board determined the costs to Permittees by using the
Permittees’ self-reported data and stormwater cost studies.
(f) The Permittees’ 2010-2011 average cost of compliance with existing
MS4 programs was $4,090,876, with a median cost of $687,633. When
compliance costs that are not completely tied to MS4 programs (such as
street sweeping and trash collection) are removed, the adjusted average
cost drops to about $2.4 million with a median cost of $290,000. The
mean adjusted per household cost was $42.57 and the median adjusted
per household cost was $17.89.
(g) The benefits of storm water and urban runoff management programs
would considerably exceed the costs of such programs.
(h) Failure to regulate MS4 discharges would have significant economic
impacts in terms of health-related expenses and loss of tourism
revenues.
(i) The federal Environmental Protection Agency estimated household
willingness to pay for improvements in water quality for fishing and
boating ranged between $158 and $210 per year.
(j) A Stormwater Cost Survey prepared in 2005 for the State Board
reported that households were willing to pay $180 annually for
statewide clean water.
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(k) Almost $650 million in state, local, and federal funding was currently
allocated to storm water management projects in Los Angeles County,
and an additional $300 million would potentially be available if fee
proposals were approved by the Los Angeles County Flood Control
District Board of Supervisors.
The Water Control Boards’ analysis of the economic considerations
identified in the Permit satisfied their obligation to consider the subdivision (d) factor of
Water Code section 13241. Among other things, the Water Control Boards explained
that the cost of regulating MS4 discharges is “highly variable” among the Permittees,
provided ranges and averages of cost data and economic impacts in several categories,
considered how much more the Permittees’ costs might be under the Permit’s terms,
identified potential sources of funds to cover the costs of the Permit, and concluded the
failure to regulate would increase health-related expenses. The Water Control Boards’
analysis of economic considerations was well within its discretion.
We note that the above is not an exclusive list of the facts to be considered
under Water Code section 13241, subdivision (d). Indeed, every case arising under this
statute will differ as to what economic considerations must be evaluated. We are
concerned in this opinion with what the Water Control Boards considered in the process
of issuing the Permit: Our discussion of the Water Control Boards’ consideration of the
section 13241 factors is intended to provide an analytical framework. This opinion
illustrates by example the extent of the Water Control Boards’ discretion; that discretion
is not unlimited and is subject to judicial review. Here, the record showed that the Water
Control Boards explained their reasoning and acted within their discretion.
Duarte contends the Water Control Boards abused their discretion as a
matter of law because they failed to analyze economic considerations on a more detailed
level for each and every Permittee. But there is no support in precedent for such an
extensive requirement. Indeed, there is “no authority for the proposition that a
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consideration of economic factors under Water Code section 13241 must include an
analysis of every conceivable compliance method or combinations thereof or the fiscal
impacts on permittees.” (Arcadia I, supra, 135 Cal.App.4th at p. 1417.) Further, a
TMDL that includes “estimated costs of several types of compliance methods and a cost
comparison of capital costs and costs of operation and maintenance . . . [¶] is adequate
and does not fulfill the arbitrary or capricious standard.” (Arcadia I, supra, 135
Cal.App.4th at pp. 1417-1418.)
Amici Curiae argue that the economic situation resulting from the
COVID-19 pandemic establishes the need for the Water Control Boards to consider the
costs to the Permittees. Without minimizing in any way the exceptional financial
downturn suffered throughout California and the entire country as a result of the
COVID-19 pandemic, we reject Amici Curiae’s argument for two reasons. First, the
Water Control Boards are charged with taking into account economic considerations, not
merely costs of compliance with a permit. As noted, economic considerations also
include, among other things, the costs of not addressing the problems of contaminated
water. Second, state and federal law provide the framework within which the Water
Code section 12341 factors must be considered; later changes in the global economy are
not relevant to whether the Water Control Boards complied with their statutory
5
obligations in 2012 and 2015.
5
We deny Amici Curiae’s request for judicial notice of the 2020-2021 California State
Budget, which was offered solely in connection with this argument. The budget is not
relevant to whether the Water Control Boards complied with their duties in approving the
Permit.
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DISPOSITION
The judgment is reversed and the matter is remanded with directions to the
trial court to deny the petition for writ of mandate and enter judgment in favor of
Appellants. Appellants to recover costs on appeal.
FYBEL, J.
WE CONCUR:
ARONSON, ACTING P. J.
IKOLA, J.
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