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TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: DIRECTOR OF PUBLIC WORKS
DATE: MARCH 16, 2004
SUBJECT: BURBANK V. STATE WATER RESOURCE CONTROL BOARD – SUPREME COURT AMICUS BRIEF
Decline to join an amicus brief filed in the California Supreme Court prepared by the Coalition for Practical Regulations in the City of Burbank V. State Water Resources Control Board.
The State Water Resources Board and the Los Angeles Regional Water Quality Control Board promulgate storm water regulations impacting the City of Rancho Palos Verdes. The City, along with the County and other incorporated cities in the Los Angeles County, are all permittees of a National Pollution Discharge Elimination System (NPDES) permit. The permit regulates the discharge of storm water and urban runoff from all storm drains within the Los Angeles Basin. Each new permit compels the city to spend additional funds on new water quality programs. Some examples of this are the installation and maintenance of inserts into selected catch basins, the sweeping of city parking lots, the posting of notices at all catch basins and public canyons, and most recently establishing a plan to monitor the bacteria level off our coast. The annual cost for these new activities is approximately $ 50,000. To date the City has been able to fund these additional activities from its general fund.
The regional board has also promulgated requirements that staff felt were unreasonable. Two examples of this were the requirement that trash bins be installed at all transit stops, and the designation of the entire city as an environmentally sensitive area. The net effect of these regulations would have been a significant expense maintaining trash bins and unreasonable regulations on private properties, with little water quality benefit. In each case city staff negotiated with staff from the regional board to significantly ease the regulation. The net effect is that staff believes that the water quality programs currently in place are reasonable, effective, and affordable.
The City of Rancho Palos Verdes, along with a number of cities is engaged in a lawsuit against the Regional Water Quality Control Board regarding one aspect of water quality regulations, the absence of the safe harbor provision. The safe harbor provision, which was a part of earlier permits, gave cities that are in compliance with current regulations and that are following best management practices, immunity from penalties. Without such a provision even if we comply with every new regulation established but do not reduce pollutant levels below a subjective standard, we are subject to penalties. This lawsuit is generally referred to as the Richards Watson & Gershon lawsuit, or RWG lawsuit. Other issues raised in the RWG lawsuit is (1) whether the RWQCB is required to consider the economic impact of permit requirements when it issues an NPDES permit; and (2) whether the Regional Board was required to consider the environmental impact of the Permit under CEQA before adoption.
The Building Industry Association (BIA) along with a number of other cities have formed the Coalition for Practical Regulations or CPR, and has also filed a lawsuit against the Regional Water Quality Control Board. The City of Rancho Palos Verdes was initially part of the CPR but we are not a party to the CPR lawsuit. The CPR includes the BIA and many industrial cities and as a result their concerns do not always align very well with the issues that are important to the City of Rancho Palos Verdes. Moreover the CPR has taken some very strong stances with which we did not fully concur, and which could make us a target of a number of environmental groups. Therefore, Rancho Palos Verdes and a number of cities have chosen to align themselves more closely with the RWG lawsuit that argues against the most unreasonable aspects of the new permit.
The City of Burbank and the City of Los Angeles are also engaged in a lawsuit against the State Water Resources Control Board and the Regional Board regarding the terms of the terms of the NPDES permits issued to their treatment facilities. They prevailed in the trial court on the grounds that (1) the RWQCB did not consider the economic impact of permit requirements when it issued their permits; and (2) did not consider the environmental impact of the Permit under CEQA before adoption. The Court of Appeal reversed and the California Supreme Court has agreed to hear the case.
The law firm of Richards Watson & Gershon on behalf of the League of California Cities is currently preparing an amicus brief in support of the cities of Burbank and Los Angeles. A similar amicus brief is also being prepared for the Coalition for Practical Regulations by the law firm of Rutan and Tucker. Staff has not been provided with a copy of either brief, which are still being prepared.
The City of Rancho Palos Verdes has been asked to join the CPR amicus brief. We have been requested to notify them of our intent by March 26, 2004. The League of California Cities does not feel it necessary for cities to join in an amicus brief since they already represent nearly all California cities.
It does not appear necessary for the City of Rancho Palos Verdes to join the CPR amicus brief in order to support the cities of Burbank and Los Angeles in their action against the State Water Resources Control Board, and for this reason staff recommends that we decline to join in their brief.
By adopting the staff recommendation the City Council will decline an offer by the Coalition for Practical Regulations to join in their amicus brief, and allow the brief being prepared by the League of California cities to represent our position.
Regardless of action there will be no fiscal impact. The BIA is funding the cost to prepare the CPR lawsuit, and the RWG lawsuit is being prepared pro bono.
Dean E. Allison
Director of Public Works