CC - 2005-13 - Appeal in LA County Municipal Stormwater Permit Litigation0
RESOLUTION NO. 2005-13
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF ROSEMEAD, CALIFORNIA,
AUTHORIZING THE CITY'S PARTICIPATION IN
THE APPEAL OF THE DECISIONS OF THE
SUPERIOR COURT IN IN RE LOS ANGELES
COUNTY MUNICIPAL STORMWATER PERMIT
LITIGATION
WHEREAS, on December 13, 2001, the California Regional Water Quality
Control Board, Los Angeles Region ("Regional Board") adopted Order No. 01-
182, a National Pollutant Discharge Elimination System ("NPDES") Permit for
Municipal Storm Water and Urban Runoff Discharges within the County of Los
Angeles and the incorporated cities therein, except the City of Long Beach
(hereinafter "NPDES Permit");
WHEREAS, in January, 2003, 45 Cities, along with the County of Los
Angeles and the County Flood Control District, filed six (6) different lawsuits in
Los Angeles County Superior Court, against the California Regional Water
Quality Control Board, Los Angeles Region ("Regional Board") seeking, among
other things, the issuance of a writ of mandate to invalidate all or portions of the
NPDES Permit issued by the Regional Board in December of 2001. The various
lawsuits sought resolution of issues involving the extent of the application of the
maximum extent practicable ("MEP") standard under the Clean Water Act, and
the reasonableness standard under the Porter-Cologne Act, specifically as to
whether they are to be interpreted as imposing limitations on the terms of a
municipal NPDES Permit, including future NPDES Permits. The lawsuits also
sought to resolve whether the Cities may be found to be in violation of an NPDES
Permit, where they are acting in good-faith and taking appropriate measures to
comply with water quality objectives, i.e., whether a "safe harbor" exists under
such circumstances to provide protection to the Cities from enforcement actions
and/or third party citizen suits that may be asserted by environmental
organizations such as the Natural Resources Defense Council, the Santa Monica
Bay Keeper, or Heal-the-Bay;
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WHEREAS, other important issues raised in the lawsuits involved whether
the Regional Board has the authority in the first instance to issue NPDES
permits, or whether such permits must ultimately be approved by the State Water
Resources Control Board to ensure consistency throughout the State; whether
the Regional Board was required to comply with the California Environmental
Quality Act ("CEQA') in issuing the Permit; whether the Regional Board acted
contrary to State land use law governing general plans and acted contrary to the
provisions of CEQA when it required the Permittees to amend their General
Plans and their CEQA processes in a manner that is believed to be contrary to
State laws; whether the Regional Board had the authority to impose the
Inspection and Facility Control Program upon the Cities, requiring the Cities to
regularly inspect industrial and commercial facilities and construction sites,
including inspections of State permitted facilities (that are already to be regulated
by the State pursuant to State-issued NPDES Permits); whether the Regional
Board was required but failed to conduct a cost/benefit analysis or to consider
the economic impacts of the terms of the Permit on municipalities; whether the
Regional Board was required to consider the need for developing housing within
the region in issuing municipal NPDES Permits; whether the Regional Board
adopted permit terms that impose overly prescriptive methods of compliance
upon the Permittees in violation of State law; whether the Regional Board's
Development Planning program also known as the Standard Urban Storm Water
Mitigation Plan ("SUSMP"), was a program in excess of the Regional Board's
authority and contrary to State and federal law, whether the Regional Board has
the authority to regulate the quantity of water as opposed to the quality of water;
and whether the Regional Board conducted the hearing on the Permit in
accordance with State law„ and provided a fair hearing and due process of law
when it did not follow the formal hearing requirements provided under State law
and when it subsequently included documents in the Administrative Record that
were not before the Regional Board or referenced in findings of the Regional
Board;
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WHEREAS, on March 24, 2005, the Superior Court denied all relief
requested by the Cities, and issued a Judgment in the Respondents' favor,
based on two Statements of Decision issued by the Court, one for each of the
two phases of the trial;
WHEREAS, the State and Regional Boards have alleged that State Policy
and federal law authorizes it to force the Cities to undertake certain measures or
Best Management Practices ("BMPs") to comply with water quality objectives or
standards, even if those measures exceed the "maximum extent practicable" and
"reasonableness" standards under federal and State law, and to force the Cities
to undertake such measures to strictly comply with water quality objectives and
standards, including numeric effluent limits that may be adopted through the
incorporation of water quality effluent limits, which include total maximum daily
loads or TMDLs, regardless of cost,
WHEREAS, the actions taken by the Regional Board in adopting the
NPDES Permit and the policy decisions of the Regional Board, and its
interpretations of State and federal law, are inconsistent with the requirements of
the Clean Water Act and State Law, and will result.in the imposition of unlawful
and unsupportable programs on the City and its citizenry; and
WHEREAS, the City believes the Judgment and decisions issued by the
Los Angeles County Superior Court were in error, and. would allow an invalid
NPDES Permit to remain in place, and if such decisions of the Superior Court,
are left unchallenged, will likely lead to the incorporation of similar invalid permit
terms in future NPDES permits issued to the City. As such, an appeal of the
Superior Court's decisions and judgment in that action entitled Cities of Arcadia,
et al. v. Regional Water Quality Control Board, Case No. BS080548 (Related
Cases Nos: BS080753; BS080758; BS080791; BS080792; BS080807) with such
cases collectively referred to as In Re Los Angeles County Municipal Storm
Water Permit Litigation, is appropriate to rectify the improper actions and policies
of the Regional and/or State Board;
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NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF
ROSEMEAD, CALIFORNIA, DOES HEREBY RESOLVE AS FOLLOWS:
Section 1. To authorize the filing of a timely appeal of the judgment and
adverse decisions made by the Superior Court in that action entitled Cities of
Arcadia, et al. v. Regional Water Quality Control Board, Case No. BS080548
(Related Case Nos: BS080753; BS080758; BS080791; BS080792; BS080807)
collectively known as In Re Los Angeles County Municipal Storm Water Permit
Litigation.
Section 2. To retain Richard Montevideo, Esq., in coordination with other
Los Angeles County Cities, to prosecute the appeal of the above-referenced
actions, and to further advise, assist and represent the City in all matters
concerning the prosecution of such appeal.
Section 3. The City Clerk shall certify to the passage and adoption hereof.
PASSED, APPROVED AND ADOPTED at a regular meeting of the City
Council this 10th day of May 2005.
VAYOP
ATTEST:
7
CITY CLERK
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STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) SS.
CITY OF ROSEMEAD )
I, Nancy Valderrama, City Clerk of the City of Rosemead, do hereby certify that the
foregoing Resolution No. 2005-14 being:
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD,
CALIFORNIA, AUTHORIZING THE CITY'S PARTICIPATION IN THE APPEAL OF
THE DECISIONS OF THE SUPERIOR COURT IN INRE LOS ANGELES COUNTY
MUNICIPAL STORM WATER PERMIT LITIGATION
was duly and regularly approved and adopted by the Rosemead City Council on the 10°i
day of May 2005, by the following vote to wit:
YES: CLARK, NUNEZ, IMPERIAL, TAYLOR, TRAN
NO: NONE
ABSTAIN: NONE
ABSENT: NONE
NANCY ERR-AMA, CMC
CITY CLERK