Court Strikes Down Effluent Limitations in Statewide Construction Stormwater Permit
Decision Could Be Far-Reaching If Upheld on Appeal
Best Best & Krieger
12/12/2011
A recent Sacramento Superior Court decision struck down numeric effluent limitations on discharges of stormwater from large construction sites regulated under the statewide General Permit for Storm Water Discharges Associated with Construction Activities (CGP). If upheld on appeal, the decision will have far-reaching effects for construction sites across the state, removing a hard target for enforcement that could be infeasible to meet depending on the conditions of the construction site.
In California, the CGP is issued by the State Water Resources Control Board in lieu of the U.S. Environmental Protection Agency, which does so elsewhere under the federal Clean Water Act. The California Building Industry Association challenged the CGP following its adoption in September 2009. The basis of the challenge was that the State Board failed to comply with the Clean Water Act’s requirements for developing and implementing numeric effluent limits in National Pollutant Discharge Elimination System (NPDES) permits. The court agreed, holding that any permit issued by a state must provide for compliance with all applicable provisions of the Clean Water Act.
The Clean Water Act sets forth very specific requirements for how numeric effluent limits may be developed and incorporated into NPDES permits. In particular, limits based on the availability of technology must be developed based on a case-by-case analysis of existing conditions and available technologies if the EPA has not promulgated its own limitations. The State Board considered data on pollutant levels; it did not conduct an in-depth analysis of which treatment technologies would result in compliance. As a result, the court found that the CGP’s numeric effluent limits were invalid.
