191 Cal. App. 4th 156
Cal. Ct. App.2010Background
- This case analyzes the intersection of the federal Clean Water Act and the California Porter-Cologne Act in challenging a regional water quality control plan for storm water and urban runoff.
- Plaintiffs allege the Regional Board violated section 13241/13000 factors by not properly reviewing and revising water quality objectives during the 2004 triennial review and by relying on “potential” uses to justify objectives.
- The superior court granted a writ of mandate directing public hearings and revision, but stayed immediate halting of enforcement to avoid unintended consequences, pending review.
- Defendants and interveners contend the petition was barred by collateral estoppel and statutes of limitations and that the board complied with applicable statutes.
- The court of appeal ultimately reverses, finding collateral estoppel and substantive defenses have merit and remands for entry of a new judgment denying the petition; the appeal is moot.
- The matter involves multiple MS4 permits and TMDLs and the boards’ decisions to implement plans consistent with federal standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Collateral estoppel effect on 13241/S13000 considerations | Plaintiffs contend prior appellate decisions did not resolve 13241 considerations for storm water. | Defendants argue privity and final judgments support estoppel. | Collateral estoppel applies to the 13241 considerations in related rulings. |
| Accrual and statute of limitations | Action timely under continuing violation theory. | Accrual occurs at the last element; earlier acts barred. | Three-year statute applies; continuing violation theory not dispositive for all claims. |
| Duty to apply 13241/13000 at 2004 triennial review | Board must consider 13241/13000 factors during 2004 review. | No mandatory duty to revisit those factors at 2004 review. | No mandatory 13241/13000 analysis required at the 2004 triennial review; focus remained on water bodies and uses. |
| Interpretation of 13241 factors including potential uses | “Including, but not limited to” expands to potential uses. | Factors are to be considered but not limited to uses; focus on uses and criteria. | Agency interpretation allowing consideration of potential uses was proper." |
| Compliance with federal law and limits of section 13241 | Boards exceeded federal minimums by imposing stricter state requirements. | Actions compelled by federal law; state cannot impose lower standards. | Actions were compelled by federal standards; no exceedance shown. |
Key Cases Cited
- City of Arcadia v. State Water Resources Control Bd., 135 Cal.App.4th 1392 (Cal. Ct. App. 2006) (discusses 13241 factors and economic considerations in TMDLs)
- City of Burbank v. State Water Resources Control Bd., 35 Cal.4th 613 (Cal. 2005) (addresses when 13263/13241 considerations apply to permits; federal-law baseline)
- Howard Jarvis Taxpayers Assn. v. City of La Habra, 25 Cal.4th 809 (Cal. 2001) (continui ng violation concept for regulatory challenges)
- Travis v. County of Santa Cruz, 33 Cal.4th 757 (Cal. 2004) (discusses accrual and timely challenge to regulatory actions)
- Pronsolino v. Nastri, 291 F.3d 1123 (9th Cir. 2002) (fram ework for water-quality standards under federal law)