Friday, October 18, 2013
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C.A. Rejects County’s Bid for Compliance Cost Reimbursement
Justices Say NPDES Permit Requirements Were Federal, Not State, Mandates
By KENNETH OFGANG, Staff Writer
The state is not required to reimburse local governments for the costs of preventing storm water pollution “to the maximum extent possible,” as required by the federal Clean Water Act, the Court of Appeal for this district has ruled.
Div. One Tuesday affirmed a Los Angeles Superior Court judge’s ruling that the Commission on State Mandates was wrong when it held that four specified requirements of a municipal stormwater sewer permit were reimbursable by the state under Proposition 4. The panel agreed with Judge Ann I. Jones that the mandates are not reimbursable because they are imposed by the federal government.
Proposition 4, enacted in 1979, amended the state Constitution to provide, subject to specified exceptions, that if the Legislature “mandates a new program or higher level of service on any local government,” the state must provide the funds necessary to comply. Under implementing legislation, the Commission on State Mandates determines when Proposition 4 applies, and it is then up to lawmakers to either provide the necessary funds or lift the mandate.
Permit Issued
The permit in question was issued in 2001 by the state’s Regional Water Quality Control Board to the county, the Los Angeles County Flood Control District, and 84 cities—the only non-participating city was Long Beach. The permit was issued under the Clean Water Act’s National Permit Discharge Elimination System.
The NPDES implements the act’s requirement that operators of “municipal separate storm sewer systems,” or MS4s, obtain permits that include controls to “to reduce the discharge of pollutants to the maximum extent practicable.” The Environmental Protection Agency is authorized by the 1987 amendments to the act to fashion permit requirements based on specific controls, without specific numeral effluent limits, so the standard is more flexible than in the case of other point sources, such as sanitary sewer systems.
The federal act also allows the EPA to designate a state agency as the issuer of NPDES permits in that state, if its standards are at least as stringent as the EPA’s own. In California, the Regional Water Quality Control Board, established by a statutory scheme that predates the Clean Water Act, is that agency.
Test Claim
In 2003, the county and five of its cities submitted a test claim to the Commission on State Mandates, seeking a ruling that four requirements of the 2001 permit—installation of trash receptacles at transit stops; inspections of specified commercial facilities, such as gas stations, at least twice within a five-year period, with at least one year between inspections; inspections of industrial facilities, also twice within a five-year period; and inspection of construction sites, with at least one such inspection during each “wet season”—were not previously mandated by the state and were thus reimbursable under Proposition 4.
The commission agreed that the four requirements were unfunded mandates. It found the inspection requirements exempt from reimbursement because the county had the ability to charge user fees for the inspections, but found the cost of the trash receptacles to be reimbursable.
Jones, however, granted the state’s petition for writ of mandate, saying the agency had to include the challenged requirements in the permit in order to meet the Clean Water Act standard, making them federal mandates.
The judge reasoned:
“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.”
Johnson Opinion
Justice Jeffrey Johnson, writing for the Court of Appeal, said the trial judge was correct.
Johnson explained that that by issuing the permit, the agency necessarily determined that its requirements were necessary to meet the maximum-extent-practicable standard. That determination is entitled to a presumption of correctness, the justice said, placing the burden on the permit holder to show that “the particular requirement’s technical feasibility, cost, public acceptance, regulatory compliance, and effectiveness” make it more burdensome than federal law requires.
No such showing was made in this case, the justice said.
He wrote:
“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, given the flexibility and mutability of the maximum extent practicable standard, of necessity our decision is limited to the specific mandates addressed here.”
The jurist also rejected an argument, raised by the Building Industry Legal Defense Fund in an amicus brief supporting the county, that because the Clean Water Act does not preempt state law, the challenged requirements were exercises of the state board’s discretion and therefore reimbursable as state mandates.
“[T]he 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,” the justice wrote. “As a result, there is no California law that might be preempted, and federal preemption analysis is inapposite.”
Attorneys on appeal were Howard Gest and David W. Burhenn of Burhenn & Gest, for the county and for the cities of Bellflower, Carson, Commerce, Covina, Downey and Signal Hill; Principal Deputy County Counsel Judith Fries for the county; and Deputy Attorney General Kathleen A. Lynch for the state.
The case is State Department of Finance v. Commission on State Mandates (County of Los Angeles), 13 S.O.S. 5381.
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