Loading...
CC - Item 4B - Municipal Stormwater Permit Litigation 2005-130 TO: HONORABLE MAYOR AND MEMBERS ROSEME D CITY COUNCIL FROM: BILL CR WE, CITY MANAGER DATE: MAY 10, 2005 • RE: ADOPT RESOLUTION NO. 2005-13 AUTHORIZING THE CITY'S PARTICIPATION IN THE APPEAL OF THE DECISIONS OF THE SUPERIOR COURT IN THE MUNICIPAL STORMWATER PERMIT LITIGATION The City Council is being asked to authorize the City's participation in the appeal of the Superior Court decisions in the Los Angeles County Municipal Stormwater Permit litigation. The estimated costs of the City's share of litigation expenses range from $4,000 to $5,000. Resolution No. 2005-13 authorizes the City's participation in the appeal and retains Rutan & Tucker, which represented Rosemead and 30 other cities in the litigation, to prosecute the appeal. In January of 2003, 45 cities, along with the County of Los Angeles and the County flood control district filed six separate lawsuits against the State and Regional Water Boards. The litigation sought to invalidate portions of the NPDES Permit issued by the Regional Board in December of 2001. Rosemead was party to one lawsuit involving 31 cities. The major lawsuit issues revolved around the permit's requirement that cities storm water discharges meet strict "receiving waters" requirements and the elimination of the "safe harbor" clause for cities implementing the terms of the permit. The lawsuit also sought to resolve issues revolving around the Maximum Extent Practicable standard under the Clean Water Act and the "reasonableness standard" under state statutes. Much has transpired in the last three years, including adverse decisions in the San Diego NPDES Permit case. A more recent favorable ruling was obtained in the California Supreme Court in the Burbank v. Los Angeles Regional Water Board case. COUPCIL AGE,-tDA MAY I o 2005 ITEM No. ~ c • , The Superior Court decision was made prior to the Burbank case. The judge denied all relief requested by the cities and issued a judgment in two separate Statement of Decisions, one for each phase of the trial. We believe that the judgment and decision issued by the court are in error and would effectively allow the permit compliance costs to be "open ended" to our City, residents and businesses. If left to stand unchanged, the permit will require strict compliance with water quality objectives and standards, including numeric effluent limits for both dry and wet-weather discharges from Signal Hill's storm drain system. The permit allows the Regional Board to go beyond the "MEP" standard, regardless of the costs to our community. The unfunded mandates of the NPDES Permits have become an increasing issue for the cities and Los Angeles County. As example, the Regional Board estimated compliance for the Metals TMDL (Total Maximum Daily Load) for the Los Angeles River at $1.4 billion. The Regional Board plans to enforce the TMDL through the NPDES Permit. For Rosemead that would translate into $133 million or approximately $9,500 per household over the proposed 22-year implementation time for the TMDL. RECOMMENDATION: Adopt Resolution No. 2005-13 authorizing the City's participation in the appeal of the Superior Court decisions in the Los Angeles County Municipal Stormwater Permit litigation. • RESOLUTION NO. 2005-13 0 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF OCETYES DPARTICIPATION I N, AUTHORIZING THE THE APPEAL OF THE DECISIONS OF THE SUPERIOR IN IN RE LOS ANGELES STORMWATER PERMIT COUNTY MUNICIPAL 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; -1- • • 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; -2- 0 i 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 Cdurt'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; -3- • 0 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. MAYOR ATTEST: CLERK -4- MAYOR: JAY T. IMPERIAL MAYOR PRO TEM: GARY A TAYLOR COUNCILMEMBERS: MARGARET CLARK JOHN H. NUNEZ JOHN TRAN • May 19, 2005 Mr. Ken Farfsing City Manager City of Signal Hill 2175 Cherry Avenue Signal Hill, CA 90755-3799 Dear Mr. Farfsing: • Posemc ad 8838 E. VALLEY BOULEVARD - P.O. BOX 399 ROSEMEAD. CALIFORNIA 91770 TELEPHONE (626) 569-2100 FAX (626) 307-9218 At their regular meeting of May 10, 2005, the Rosemead City Council adopted 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 RE LOS ANGELES COUNTY MUNICIPAL STOR.17 f 4 TER PERMIT LITIGATION by unanimous vote. Attached is a copy of that resolution. If you have any questions, please give me a call at 6261569-2171. Sincerely, NANCY VAL RRAMA City Clerk City of Rosemead Attch. • 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; -1- • • 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 ("CEQK) 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; • • 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; -3- • 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. .4F 0 A6XAYO~R ATTEST: CITY CLERK -4- 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 STORMT4, 4TER PERMIT LITIGATION was duly and regularly approved and adopted by the Rosemead City Council on the 10`" day of May 2005, by the following vote to wit: YES: CLARK, NUNEZ, IMPERIAL, TAYLOR, TRAN NO: NONE ABSTAIN: NONE ABSENT: NONE NANCY VAL ERP-WA, CMC CITY CLERK