The City of Duarte is pleased to report that it has obtained a favorable ruling in its long-running litigation with the State Water Board and Los Angeles Regional Water Quality Control Boards over its municipal stormwater permit. The ruling by the Honorable Judge Glenda Sanders was issued on September 24, 2019, and orders the Water Boards to set aside any provision of the L.A. County municipal storm water permit pertaining to “numerical effluent limitations” (known as “NELs”). Projects to meet these standards are likely to cost billions of dollars across Los Angeles County, with uncertain results on actually being able to comply with the NELs, leading to exposure to third-party citizen suits and Water Board enforcement actions, including penalties and the payment of attorneys’ fees if the NELs are shown to be exceeded.
The thrust of the ruling was that federal law does not require the inclusion of the NELs in municipal stormwater permits, and that the Water Boards failed to consider the cost to the permittee cities to meet the NELs, as is required under State law.
After having first unsuccessfully sought relief to the State Water Board to remove the NELs from the permit, Duarte then filed its lawsuit in July of 2015. Subsequently, the City of Gardena filed a similar lawsuit, and the Courts in essence joined the Gardena suit to Duarte’s lawsuit.
At trial in Orange County Superior Court, Duarte argued that the challenged NELs and related portions of the permit were not required by federal law, and were not adopted by the Water Boards in accordance with California law. Duarte did not challenge the remainder of the permit, instead taking the position that a number of the permit terms were appropriate and beneficial to the permittees and the environment. The Court agreed with Duarte on Duarte’s claims and issued its final Decision in April of 2019. However, after the Court issued its Decision, but before a final judgment was entered, the Respondent Water Boards then argued that if the NEL terms were to be invalidated, the entire permit should also be invalidated, rather than just the challenged numeric effluent limitations. For other reasons, Gardena also asked that the entire permit be stricken.
On September 24, 2019, the Court issued a final judgment in the case, and agreed with Duarte that only the invalid NEL terms of the permit should be set aside, and not the entire permit. The Court’s Decision and Judgment now paves the way for the cities and County to continue to work with the Water Boards to plan for realistic water quality improvement initiatives, presumably within achievable practical and financial limits. It also relieves the cities from the risk of third-party lawsuits brought to enforce the permit’s NEL requirements, which would also subject the cities to hefty penalties and attorneys’ fees.
“I applaud our staff and the other cities for their solidarity on this critical storm water issue,” said Duarte Mayor Pro Tem Samuel Kang. Adding, “As a chemist and elected official, I believe strongly in a clean environment through the application of proven technology. However, we must be fiscally responsible and not unduly burden our cities or constituents with unnecessary costs. This verdict avoids the expenditure of hundreds of millions of dollars on unproven mitigation that may not even be effective.”
The Water Boards have 60 days from the issuance of the judgment to file its appeal, or if it chooses not to appeal, 90 days to comply with the Court’s judgment and set aside the challenged NEL related terms in the permit and report back to the Court. Duarte also intends to file a motion to recover its attorneys’ fees, based in part on the broad benefit its efforts have created for Los Angeles County cities and their residents, as well as every other entity throughout the State which may be subject to similar NEL-related terms in similar permits.