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On November 21, 2014, the State Water Resources Control Board (State Water Board) issued a proposed order on the petitions challenging the 2012 Los Angeles Municipal Separate Storm Sewer System Permit (Proposed Order). The Los Angeles Regional Water Quality Control Board (Los Angeles Water Board) adopted the 2012 Los Angeles Municipal Separate Storm Sewer System Permit on November 8, 2012, and 37 petitions for review were subsequently filed with the State Water Board, challenging many of the provisions and associated findings. The Proposed Order presents the State Water Board’s proposed findings on significant issues in the petitions, namely whether the watershed management program or enhanced watershed management program (WMP/EWMP) alternatives are an appropriate approach to constitute compliance with the receiving water limitations required in municipal separate storm sewer system (MS4) permits.

Under the federal Clean Water Act, NPDES permits are required for MS4 discharges to surface waters. Permits for these discharges must implement technology-based standards, which for stormwater include reducing the discharge of pollutants to the “maximum extent practicable” with “best management practices” (BMPs). The state permitting agencies have discretion as to whether and how to require compliance with more stringent water quality standards in receiving waters. In several precedential orders, the State Water Board exercised this discretion to require compliance with receiving water limitations, but also allowed receiving water limitations that prescribed an “iterative process.” The “iterative process” involves implementation of improvements to BMPs if a water quality standard has been exceeded. The State Water Board has consistently stated that the iterative process does not operate as a “safe harbor.”

Through this petition process, and also in an “Issue Paper” and public workshops, the State Water Board has been reviewing its position on requiring compliance with water quality standards in MS4 permits and whether the iterative process constitutes compliance, as well as discussing other alternative compliance pathways for receiving water limitations. In the Proposed Order, the State Water Board tentatively affirms its position that MS4 permits must enforce water quality standards and that engagement in the iterative process does not operate as a safe harbor to excuse violations of water quality standards. At the same time, the State Water Board tentatively finds that implementation of a WMP/EWMP constitutes an appropriate and immediate compliance alternative for receiving water limitations.

WMPs and EWMPs are collaborative and comprehensive water quality planning processes that prioritize water body-pollutant combinations, evaluate the sources of the pollutants, and select watershed strategies to meet water quality limitations. The State Water Board explains that the ambitious water quality goals in a WMP/EWMP, clear and enforceable deadlines, and the required public review of a WMP/EWMP and approval by an Executive Officer contribute to the finding that implementation of a WMP/EWMP maximizes the likelihood of achieving receiving water limitations. The State Water Board therefore tentatively supports the WMP/EWMP, with the modifications included in the Proposed Order, as an alternative compliance approach. The Proposed Order addresses other related issues identified in the petitions, which are not discussed in this article.

The Proposed Order in its entirety is available here. Written public comments on the Proposed Order are due by January 21, 2015. For more information on the Proposed Order, please contact Brittany Lewis-Roberts at blewis-roberts@somachlaw.com.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.