Divers’ Environmental Conservation Organization v. State Water Resources Control Board (Nov. 29, 2006, D046112) __ Cal.App.4th __ http://www.courtinfo.ca.gov/opinions

By Ella Foley-Gannon and Julie Austin

The Court of Appeals held that a permitting agency under the Clean Water Act is not required to conduct a numeric analysis of individual pollutants in industrial stormwater discharges in order to comply with federal regulations.  In addition, even if a discharge will cause the receiving body of water to violate State water quality standards, the agency is not required to impose numeric “water-quality based effluent limitations” (WQBELs) in a National Pollutant Discharge Elimination System (NPDES) permit.  Rather, to comply with the regulations, the agency may conduct more general, non-numeric tests of stormwater discharges and, if necessary, impose Best Management Practices (BMPs) on the discharger.  This decision is significant because the environmental community has recently pressured permitting agencies to impose numeric limitations on industrial discharges, which include construction discharges.  These numeric limitations, if required, would have presented a huge challenge and risk to permittees, who could violate their permits despite the fact that stormwater pollutants are highly variable and may be beyond their control.  Thus, this decision helps protect permittees by clarifying that permitting agencies are not required to use numeric limitations to regulate industrial stormwater discharges.


The Regional Water Quality Control Board (Regional Board) issued the Navy a NPDES permit for industrial stormwater discharges from its San Diego Complex to San Diego Bay.  The permit required that the Navy develop and adopt a Storm Water Pollution Prevention Plan under which it would use BMPs to reduce or eliminate pollutants released into the Bay.  The BMPs included activities, maintenance procedures, and other management practices to prevent or reduce pollution.  Based on a study of water quality, the Regional Board set a numeric limit on the amount of toxicity in the Navy’s discharges.  It also required that the Navy determine the levels of copper and zinc in its stormwater discharges, which had exceeded allowable levels during the Regional Board’s testing.  If the levels exceed specific “benchmark” amounts, the Navy must review and amend its BMPs.

Plaintiff Divers’ Environmental Conservation Organization (Divers’) challenged the NPDES permit administratively both to the Regional Board and the State Water Resources Control Board (State Board).  Divers’ argued that federal regulations required the Regional Board to conduct certain tests of the stormwater discharges and include numeric WQBELs in the permit.  The trial court dismissed the State Board as a defendant and denied Divers’ petition for a writ of mandate.  The Court of Appeals affirmed the trial court’s decision on the grounds that the Regional Board was not required to conduct numeric analysis of individual pollutants and was not required to impose numeric pollutant limitations in the form of WQBELs.

Overview of Clean Water Act Requirements

The Clean Water Act (CWA) allows the Environmental Protection Agency (EPA) or an EPA-approved state program to issue NPDES permits for the discharge of pollutants.  When issuing the permits, the CWA requires the permitting agency, in this case the Regional Board, to determine technology-based effluent limitations and “water quality-based” limitations.  The latter, “water-quality based” limitations or WQBELs, are more strict because they focus not only on the quality of the discharge itself but also the quality of the receiving body of water.

Specifically, pursuant to 40 C.F.R. § 122.44(d)(1)(i), a permitting agency must impose WQBELs when pollutants may be discharged at a level that will cause or have the potential to cause or contribute to pollution of a receiving body of water such that the water violates State water quality standards.  Further, under section 122.44(d)(1)(ii), the permitting agency must determine if WQBELs will be required by analyzing the following:  (1) existing controls on pollution sources; (2) variability of the pollutants; (3) “sensitivity of the species to toxicity testing”; and (4) “dilution of the effluent in the receiving water.”  Finally, under section 122.44(d)(1)(iii), if a discharge has a “reasonable potential” to cause a violation of State water quality standards, the agency must impose WQBELs in the permit.

Permitting Agency Not Required to Use Numeric Analysis of Individual Pollutants To Determine Whether WQBELs Are Necessary

The court rejected Divers’ argument that the Regional Board abused its discretion by not identifying and analyzing numeric levels of pollutants in the Navy’s stormwater discharges, as required by section 122.44(d)(1)(ii).  The court found that this section, by its own terms, does not require that the permitting agency analyze individual pollutants numerically.

Specifically, the court relied on the reasoning of the Court of Appeals in Communities For a Better Environment v. State Water Resources Control Board, 109 Cal. App. 4th 1089 (2003).  In Communities, the court held that, although numeric limitations most likely are the “easiest and most effective” method of testing, permitting agencies are not legally required to complete these tests.  Particularly when BMPs will be employed to reduce the volume of pollutants, the Communities court noted that detailed numeric analysis may not be cost-effective for the agencies.

Following that reasoning, the court here concluded that the Regional Board complied with section 122.44(d)(1)(ii) even though it had not completed numeric tests.  Given that the Regional Board was responsible for analyzing a “variable stew of pollutants” whose content was highly unpredictable, the Regional Board could reasonably conclude that numeric analysis of this type of discharge would not be an effective way to determine whether WQBELs were necessary.

A Permitting Agency May Impose BMPs Instead of WQBELs To Comply With Federal Regulations

The court also rejected Divers’ arguments that the Regional Board had abused its discretion by imposing “benchmarks” or BMPs, instead of numeric limitations, for the Navy’s industrial discharges.

The court rejected Divers’ contention that section 402(p) of the CWA, which specifically mentions the use of BMPs for municipal stormwater permits, does not authorize the use of BMPs for industrial stormwater discharges.  The court stated that the fact that section 402(p) does not mention BMPs in relation to industrial discharges does not demonstrate that Congress disapproved of such measures.  In fact, the favorable discussion of BMPs within section 402(p) demonstrates that Congress intended that BMPs would be used generally to control pollutants in stormwater discharges, including industrial discharges.

The court also rejected Divers’ argument that the permit was invalid because its "benchmark" toxicity levels for copper and zinc exceeded water quality standards under the California Toxic Rule ("CTR").  Under the CTR, the EPA sets numeric criteria for specific toxic pollutants for California’s inland waters and bays.  Again relying on Communities, the court found that permitting agencies are not required to implement water quality standards using numeric WQBELs, even though the applicable water quality standards themselves are numeric.  In reaching this conclusion, the court noted that EPA policy is flexible and the EPA itself had referred favorably to the use of BMPs in the context of adopting the CTR standards.

Thus, the court found that the Regional Board had complied with section 402(p) of the CWA and the CTR when it imposed BMPs rather than numeric limitations for the Navy’s industrial stormwater discharges.

For further information please contact Ella Foley-Gannon and Julie Austin.  Ella Foley-Gannon is a Partner in Land Use and Natural Resource Practice Group in the firm’s San Francisco Office.  Julie Austin is an associate in the Real Estate, Land Use and Environmental Practice Group in the firm’s San Francisco Office.