Superior Court Invalidates Construction Stormwater Permit Numeric Effluent Limits
After nearly three years of regulatory fighting followed by two years of litigation, Sacramento Superior Court Judge Lloyd G. Connelly has invalidated the Numeric Effluent Limits (NELs) contained in the Construction General Permit (the CGP) for stormwater runoff which was issued by the State Water Resources Control Board (the SWRCB). The SWRCB adopted the CGP in September 2009; and it went into effect on July 1, 2010. The ruling was issued on Friday, December 2, following a lengthy series of briefings in a lawsuit brought by California Building Industry Association (CBIA), Building Industry Legal Defense Foundation (BILD), and California Business Properties Association (CBPA) as petitioners.
Back in 2009, the SWRCB chose a 500 NTU NEL for turbidity (sediment runoff) and 6-9 pH units as the NEL for pH, claiming that they were relying on three different studies to support the NELs chosen. The Court, however, found the studies to be too limited or inconclusive, and concluded that the NELs lacked substantial evidentiary support. Judge Connelly
opined that data could have been collected to support NELs if the SWRCB had followed the request of the petitioners made during the administrative process to use Numeric Action Levels (NALs) as a means to gather appropriate data. Unfortunately, the SWRCB refused to undertake any meaningful studies as proposed by the petitioners and the Construction
Industry Coalition on Water Quality (CICWQ), and instead adopted NELs.
The Court ruled that the NELs were subject to a balancing of the factors specified for consideration under federal law (not state law), and that the SWRCB was required to comply with the cost-benefit factors set forth in the federal Clean Water Act in establishing NELs. The Court concluded that the NELs are invalid and unenforceable unless and until the SWRCB can produce the data that demonstrates that available technologies will actually achieve the NELs.
The Litigation Process is Ongoing and an Appeal Will Delay the Effectiveness of the Court’s Ruling:
The litigation process is still ongoing. Specifically, on Friday December 2, 2011, the Court issued its “Ruling on Submitted Matter”.
However, the petitioners (CBIA/BILD/CBPA) must now file with the Court a proposed judgment and formal “writ of mandate.”
This proposed judgment will undergo comment by the SWRCB and eventually a judgment will be formally entered by the Court. Hopefully, this part of the process will be completed by the end of 2011.
Once the Court formally files the judgment and the writ of mandate, the petitioners will promptly file a
“notice of entry of judgment” and serve the SWRCB with the notice. Serving the SWRCB with the notice of entry of judgment will start a sixty (60) day period in which either party may file a notice of appeal.
If either party files (or both) file(s) a notice of appeal during the 60-day period following the service of the notice of entry of judgment, then the Court’s judgment is indefinitely stayed and will have no effect during the pendency of the appeal process.
In other words, the NEL requirements will remain in effect during the indefinite period that an appeal takes place if either party (or both) file(s) a timely notice of appeal. If neither
party files a notice of appeal within the 60-day period in which to do so following the service of the notice of entry of judgment, then the Court’s judgment and writ of mandate will automatically become final and effective at
the conclusion of the 60-day period.
In light of all of this, the earliest time at which the NEL requirement would be officially nullified and effectively removed from the CGP would be near the end of February – given the likelihood that the service of a notice of entry of judgment will likely not occur until later in December 2011 — at best.