Baykeeper lawsuit against Water Board to prevent industrial pollution

Verified Petition for Writ of Mandate

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Sean Bothwell (Bar No. 272105) CALIFORNIA COASTKEEPER ALLIANCE 268 Bush St., #4313 San Francisco, CA 94104 Telephone: (949) 291-3401 Facsimile: (415) 856-0443 Email: [email protected] George Torgun (Bar No. 222085) SAN FRANCISCO BAYKEEPER 785 Market Street, Suite 850 San Francisco, California 94103 Telephone: (415) 856-0444 Facsimile: (415) 856-0443 Email: [email protected] Tatiana Gaur (Bar No. 247226) LOS ANGELES WATERKEEPER 120 Broadway, Suite 105 Santa Monica, California 90401 Telephone: (310) 394-6162, ext. 102 Facsimile: (310) 394-6178 Email: [email protected]

Verified Petition for Writ of Mandate 1

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California Coastkeeper Alliance (Coastkeeper or CCKA) hereby petitions this Court for a

Writ of Mandate pursuant to California Code of Civil Procedure section 1094.5 ordering the State

Water Resources Control State Board (State Board or SWRCB) to reopen Order No. 2014-0057-

DWQ, NPDES No. CAS000001, National Pollutant Discharge Elimination System (NPDES)

General Permit for Storm Water Discharges Associated with Industrial Activities (2014 Permit), to

include monitoring provisions necessary to determine compliance with Receiving Water Limitation

VI.A., and to incorporate effluent limitations that are consistent with the assumptions and requirements

of the wasteload allocations (WLAs) assigned to industrial storm water discharges in total maximum

daily loads (TMDLs).

I. Introduction

1. In California, the State Board is responsible for adopting NPDES permits and assuring

that all the requirements of the Clean Water Act are implemented through such permits.

2. On April 1, 2014, the State Board adopted the 2014 Permit, which is a reissuance of

Californias NPDES permit that authorizes discharges of pollutants in storm water associated with

industrial activity. A copy of the 2014 Permit is filed concurrently herewith as Exhibit A to the

Declaration of Drevet Hunt in support of Verified Petition for Writ of Mandate (Hunt Dec.).

3. When issuing the 2014 Permit, the State Board must include monitoring program

requirements sufficient to determine compliance with the terms and conditions of the permit.

4. The State Board failed to include findings necessary to support a conclusion that the

2014 Permits monitoring program is sufficient to determine whether a discharger is in compliance with

Receiving Water Limitation VI.A., which requires that industrial storm water discharges do not cause

or contribute to an exceedence of any applicable water quality standards in any receiving water. When

CCKA submitted comments on the final draft of the 2014 Permit requesting confirmation that the

monitoring program is adequate to determine compliance with Receiving Water Limitations, the State

Board stated unequivocally that the 2014 Permits sampling program is insufficient to demonstrate

compliance with water quality standards. Accordingly, the State Board prejudicially abused its

discretion, failed to proceed in a manner required by law, and failed to support its findings and

conclusions with analysis and facts when adopting the 2014 Permit.


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5. In addition, the State Board did not comply with the Clean Water Act requirement to

ensure that the 2014 Permits effluent limitations and conditions are consistent with available WLAs of

existing TMDLs. Accordingly, the State Board prejudicially abused its discretion, failed to proceed in

a manner required by law, and failed to support its findings and conclusions with analysis and facts

when adopting the 2014 Permit.

II. Beneficial Interest of CCKA and Capacity of State Board

6. California Coastkeeper Alliance is a non-profit public benefit corporation organized

under the laws of the State of California and headquartered in San Francisco, California.

7. Founded in 1999, CCKA represents twelve non-profit Waterkeeper member

organizations.1 California Waterkeeper organizations work to protect and enhance the water quality

and overall health of coastal and inland waterways for the benefit of ecosystems and communities

throughout California. Collectively, CCKAs member organizations are dedicated to the preservation,

protection, and defense of the environment, and the natural resources of California watersheds and

surface waters. CCKAs member organizations work to protect the health of their local water bodies

and communities throughout California, as indicated by the geographic descriptors of each Waterkeeper

organizational name (e.g., Los Angeles Waterkeeper). CCKA defends and expands on local matters by

advocating before decision-makers on issues and programs with statewide impact and significance. To

further their goals, CCKA and CCKAs member groups actively seek Federal and State agency

implementation of Federal and State environmental laws and policies, and where necessary, directly

initiate administrative challenges and enforcement actions on behalf of themselves and their individual

members in State and Federal courts.

8. Members of the Waterkeeper organizations that comprise CCKA use and enjoy the

coastal and inland waters of the State to, among other activities, fish, sail, surf, paddle, boat, kayak,

swim, view wildlife, and engage in scientific study, including monitoring activities. The scenic and

1 The twelve non-profit organizations that CCKA represents include: Klamath Riverkeeper, Humboldt Baykeeper, Russian Riverkeeper, San Francisco Baykeeper, Monterey Coastkeeper, San Luis Obispo Coastkeeper, Santa Barbara Channelkeeper, Ventura Coastkeeper, Los Angeles Waterkeeper, Orange County Coastkeeper and Inland Empire Waterkeeper chapter, and San Diego Coastkeeper. Collectively, the foregoing Waterkeeper organizations have thousands of members residing throughout California.


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recreational resources that these members use and enjoy depend on intact and healthy ecosystems in

streams and waterways throughout the State. Where elements of those ecosystems, such as water

quality, are reduced or eliminated by discharges of pollutants at levels that fail to meet the minimum

requirements of the Clean Water Act, CCKAs members recreational uses and aesthetic enjoyment of

Californias streams and watercourses are reduced.

9. Since its inception, CCKA has participated in the State Boards development of

Californias NPDES permits regulating the discharge of storm water associated with industrial activity.

During this time, CCKA has submitted comments on each draft permit, and participated in workshops

and hearings related to the adoption of each permit. At each step, CCKA has sought to ensure that the

State Board follows the requirements of the Clean Water Act when adopting NPDES permits. See Hunt

Dec., Exhibits B-E (CCKA comment letters).

10. Thus, the interests of CCKAs and its member organizations and its members have been,

are being, and will continue to be adversely affected by the State Boards failure to comply with the

requirements of Clean Water Act described herein. The relief sought herein will redress the harms to

CCKA caused by State Boards activities and failures to act. Continuing commission of the acts and

omissions alleged herein will irreparably harm CCKAs members, for which harm they have no plain,

speedy or adequate remedy at law.

11. The State Board is now, and at all times mentioned in this petition has been, a state

agency under the laws of the State of California, and is directly responsible for carrying out the NPDES

permitting program in California.

III. Jurisdiction and Venue

12. This Court has jurisdiction over this action pursuant to Code of Civil Procedure section

1094.5. See Cal. Water Code 13330.

13. Venue is proper in this Court pursuant to Code of Civil Procedure sections 393, 395 and

401 because the State Water Resources Control Board is a state agency based in Sacramento County

and an office of the attorney general for the State of California is located in Oakland, California.

14. CCKA has exhausted all remedies available, including through active and consistent

participation in the State Board administrative process relating to the adoption of the 2014 Permit.


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15. The State Board served a copy of the 2014 Permit on April 8, 2014. Under Water Code

section 13330, this action is properly before the Court as it is filed not later than 30 days from the date

of service of the order subject to review.

IV. Authenticity of Exhibits Attached

16. The documents accompanying this petition are true and correct copies of the original

documents, and were obtained in the manner described in the Declaration of Drevet Hunt in support of

CCKAs Verified Petition for Writ of Mandate, which is filed concurrently herewith. The documents

are incorporated herein by reference as though fully set forth in this petition.

V. Regulatory Background

A. The Clean Water Act

17. The Clean Water Act was enacted to restore and maintain the chemical, physical, and

biological integrity of the waters of the United States. 33 U.S.C. 1251(a)(1).

18. The Clean Water Act establishes a goal of eliminating the discharge of pollutants to

waters of the United States. 33 U.S.C. 1251(a)(1).

19. To ensure the protection of water quality, the Clean Water Act created the National

Pollution Discharge Elimination System (NPDES) program. See 33 U.S.C. 1342.

20. The NPDES program allows regulatory agencies responsible for protection of water

quality to issue permits, known as NPDES permits, which authorize the discharge of pollutants to

waters of the United States. 33 U.S.C. 1342(a).

21. The Clean Water Act allows State governments to seek delegation from the United

States Environmental Protection Agency (EPA) to implement the NPDES permit program in their

state. 33 U.S.C. 1342(b).

22. Delegated State permitting agencies are required to implement the NPDES program

consistent with the requirements of the Clean Water Act. See 33 U.S.C. 1342(b)(1).

23. The State Board has been granted the authority to implement the NPDES permit

program in California. See Water Code 13370, 13377.

24. The State Board is required to comply with and implement all provisions of the Clean

Water Act. Water Code 13370, 13377.


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25. When issuing NPDES permits, the State Board must establish conditions to provide for

and assure compliance with all applicable requirements of [the Clean Water Act] and regulations. 40

C.F.R. 122.43(a).

26. NPDES permits authorize permittees to discharge pollutants to the nations waters,

provided the discharger complies with the terms and conditions of its NPDES permit. 33 U.S.C.

1311(a).

1. The Clean Water Acts Water Quality Based Protections Applicable to Industrial Storm Water Discharges.

27. The Clean Water Act requires permitting authorities to issue NPDES permits for the

discharge of storm water associated with industrial activity that include technology-based effluent

limitations as well as effluent limitations necessary to ensure compliance with applicable water quality

standards. 33 U.S.C. 1311(b)(1)(a)-(c), 1342(a)(1)(A), 1342(b)(1)(A), 1342(p)(2)(B), and

1342(p)(3)(A).

28. Water quality standards consist of a water bodys beneficial uses and the water quality

criteria necessary to achieve those beneficial uses. 33 U.S.C. 1313(c)(2)(A); 40 C.F.R. 130.3.

29. In California, the various regional boards designate beneficial uses of water bodies

within their respective jurisdiction. Water Code 13241.

30. Water quality criteria, also known as water quality objectives in California, are

established by the various regional boards, the State Board, or, in the event the State does not act as

required, by EPA. 33 U.S.C. 1313(a)-(c); 40 C.F.R. 131.4-131.6.

31. The California Toxics Rule (CTR) sets forth numeric water quality criteria that apply

in all water bodies in California to protect aquatic life-based beneficial uses in those waters. 65 Fed.

Reg. 31,682, 31,701 (May 18, 2000).

32. Other water quality criteria are found in various the basin plans adopted by the various

regional boards throughout the State. These water quality criteria are expressed as numeric criteria,

narrative criteria, or both.

33. Strict compliance with water quality standards is required for dischargers of storm water

associated with industrial activity. Defenders of Wildlife v. Browner, 191 F.3d 1159, 1165 (9th Cir.


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1999). 2. The Clean Water Act Requires NPDES Permits Include Monitoring Requirements

Sufficient to Determine Compliance with Permit Terms.

34. The Clean Water Act mandates that every NPDES permit contain requirements to ensure

permittees monitor their discharges to waters of the United States in a manner sufficient to determine

whether the permittee is in compliance with the terms of the permit. 33 U.S.C. 1342(a)(2) (The

Administrator shall prescribe conditions for such permits to assure compliance with the requirements

of the statute) and 1318(a)(A); 40 C.F.R. 122.44(i)(1) (every permit shall include monitoring [t]o

assure compliance with permit limitations), 122.41(j)(1), and 122.48(b) (All permits shall specify

required monitoring including type, intervals, and frequency sufficient to yield data which are

representative of the monitored activity); see also Cal. Water Code 13383.5.

35. A critical element of the Clean Water Acts NPDES permitting program is self-

monitoring by dischargers. See Sierra Club v. Union Oil Co. of Cal., 813 F.2d 1480, 1491 (9th Cir.

1987) ([t]he NPDES program fundamentally relies on self-monitoring.).

36. Congress purpose for requiring a sufficient self-monitoring program in all NPDES

permits was to promote straightforward enforcement of the Clean Water Act. Sierra Club v. Union Oil

Co. of Cal., 813 F.2d 1480, 1492 (9th Cir. 1987).

37. The Clean Water Act mandates that the permitting agency require[] the owner or

operator of any point source to monitor his own discharges accurately and to provide information to

show whether or not he is in compliance with effluent limitations and other requirements under [the

Clean Water Act]. H.R. Rep. N. 92-911, at 113-14 (1972) (discussing 33 U.S.C. 1318).

38. The Ninth Circuit recently reinforced the Clean Water Acts mandate when ruling, an

NPDES Permit is unlawful if a permittee is not required to effectively monitor its permit compliance.

Natural Resources Defense Council v. County of Los Angeles, 725 F.3d 1194, 1207 (9th Cir. 2013).

3. The Clean Water Acts Total Maximum Daily Loads Requirements.

39. When effluent limitations required under section 301(b)(1)(A) and 301(b)(1)(B) of the

Clean Water Act, 33 U.S.C. 1311(a)(1)(A)-(B), are insufficient to ensure compliance with the water

quality standards applicable to a specific water body, the State must place that water body on the list of


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impaired waters and develop a TMDL for the pollutant(s) impairing the water body. 33 U.S.C.

1313(d)(1).

40. The State must submit its list of impaired water bodies, pollutants causing impairments,

and a priority ranking including water bodies targeted for TMDL development to the EPA for review

and approval every two years. 40 C.F.R. 130.7(d).

41. TMDLs can be developed by the EPA or the state. 33 U.S.C. 1313(d); 40 C.F.R. 130.7.

42. Each TMDL must be established at a level necessary to implement the applicable water

quality standards. 33 U.S.C. 1313(d)(1)(C); 40 C.F.R. 130.2(i).

43. Each TMDL must include the individual WLAs for point sources discharging into the

water body, as well as load allocations for non-point sources and natural background sources. 33 U.S.C.

1313(d)(1)(C); 40 C.F.R. 130.2(i). 44. WLAs are [t]he portion of a receiving water's loading capacity that is allocated to one of its existing or future point sources of pollution. WLAs constitute a type of water quality-based

effluent limitation. 40 C.F.R. 130.2(h). 45. The agency establishing a TMDL may include an implementation plan as a formal

statement of how the level of that pollutant can and will be brought down to or be kept under the

TMDL. Sierra Club v. Meiburg, 296 F.3d 1021, 1029-30 (11th Cir. 2002).

46. WLAs and load allocations are set measures, or prescribed maximum quantities, of a

particular pollutant in a given water body that are effective once approved by EPA. See 40 C.F.R.

130.2(i); 40 C.F.R. 130.7(d)(2).

47. WLAs in TMDLs are incorporated in NPDES permits as water quality based effluent

limitations. See 40 C.F.R. 122.44(d)(1)(vii)(B).

48. Under California law, each regional board is required to formulate and adopt water

quality control plans, commonly known as Basin Plans, for all hydrologic areas within their region.

Water Code 13240. A water quality control plan consists of a designation or establishment for the

waters within a specified area of all of the following: (1) Beneficial uses to be protected; (2) Water

quality objectives; [and] (3) A program of implementation needed for achieving water quality

objectives. Water Code 13050(j). The program of implementation for achieving water quality


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objectives must include a description of the nature of actions which are necessary to achieve the

objectives, including recommendations for appropriate action by any entity, public or private, a time

schedule for the actions to be taken, and a description of surveillance to be undertaken to determine

compliance with objectives. Water Code 13242. Since TMDLs interpret or refine existing water

quality objectives, they are required to include a program of implementation. See Memorandum from

William R. Attwater, Chief Counsel, State Water Resources Control Board, to Gerard J. Thibeault,

Executive Officer, Santa Ana Regional Water Quality Control Board, March 1, 1999.

4. The Clean Water Act Requires Incorporation of WLAs in Existing TMDLs into NPDES Permits.

49. Once a TMDL and WLAs have been developed for an impaired water body, NPDES

permits that authorize discharges to that impaired water body must contain effluent limitations that are

consistent with the assumptions and requirements of the available WLA for the discharge. 40 C.F.R.

122.44 (d)(1)(vii)(B) (when developing water quality-based effluent limits the permitting authority

shall ensure that effluent limits are consistent with the assumptions and requirements of any

available wasteload allocation for the discharge) (emphasis added); see also Communities for a Better

Envt v. State Water Res. Control Bd. (2003) 109 Cal. App. 4th 1089, 1096.

50. This requirement applies in the storm water permitting context as in any other NPDES

permitting context. See Memorandum from James A. Hanlon and Denise Keehner, U.S. EPA, to Water

Management Division Directors, Regions 1 10, Revisions to the November 22, 2002 Memorandum

Establishing Total Maximum Daily Load (TMDL) Wasteload Allocations (WLAs) for Storm Water

Sources and NPDES Permit Requirements Based on Those WLAs, November 12, 2010, (EPA Hanlon

Memo) at 3 (the permitting authoritys duty to ensure an NPDES permit is consistent with existing

TMDLs arises whenever the State or EPA has established a TMDL for an impaired water that includes

WLAs for stormwater discharges.). The NPDES permitting authoritys duty is executed by

incorporating into the NPDES permit effluent limits and conditions consistent with the requirements

and assumptions of the WLAs in the TMDL. EPA Hanlon Memo at 3.

//

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VI. Facts and Procedural Background

A. The State Boards Permitting of Discharges Associated with Industrial Activity.

51. The State Board adopted the first NPDES permit for the discharge of storm water

associated with industrial activity in 1991 (1991 Permit).

52. In 1997, the State Board re-issued the 1991 Permit (1997 Permit).

53. The State Water Board began the process for re-issuing the 1997 Permit in the early

2000s, circulating the first draft of a revised permit in 2005. Additional drafts of the revised permit

were circulated in 2011, 2012, 2013, and 2014.

54. CCKA, or its member Waterkeeper organizations, submitted comments on each of the

draft permits circulated between 2005 and the 2014 adoption of the 2014 Permit.

55. On April 1, 2014 the State Board re-issued the 1997 Permit when it adopted the 2014

Permit.

56. The State Board notified the public of adoption of the 2014 Permit on April 8, 2014 by

serving a copy of the 2014 Permit via its Lyris notification system and by publishing a copy of the 2014

Permit on its website.

57. The 2014 Permit states that it becomes effective on July 1, 2015.

B. The 2014 Permit Does Not Include Monitoring Requirements Sufficient to Determine Whether Discharges Are Causing or Contributing to an Exceedence of any Applicable Water Quality Standard.

58. Receiving Water Limitation VI.A. of the 2014 Permit provides that [d]ischargers shall

ensure that industrial storm water discharges and authorized NSWDs do not cause or contribute to an

exceedence of any applicable water quality standards in any affected receiving water.

59. The 2014 Permit Fact Sheet at page 22 states that pursuant to CWA section

301(b)(1)(C) and Water Code section 13377, the General Permit requires compliance with receiving

water limitations based on water quality standards.

60. Finding 37 of the 2014 Permit states that [t]his General Permit requires compliance

with receiving water limitations based on water quality standards.

61. Finding 37 also provides that [w]ater quality standards apply to the quality of the


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receiving water, not the quality of the industrial storm water discharge.

62. Finding 37 further provides that compliance with the receiving water limitations

generally cannot be determined solely by the effluent water quality characteristics.

63. The 2014 Permit defines Monitoring Requirements to include sampling and analysis

activities as well as visual observations, and sets forth specific Monitoring Requirements at Section

XI and Attachment H. 2014 Permit, Section XI, Attachment C, Attachment H.

64. According to the State Board, the Monitoring Requirements are not designed to

measure the effect of a discharge on a receiving water body. 2014 Permit, Fact Sheet at 24.

65. The 2014 Permit contains 3 findings specific to its Monitoring Requirements Findings

55, 56, and 57. None of these findings states or otherwise concludes that the Monitoring Requirements

are sufficient to determine compliance with Receiving Water Limitation VI.A..

66. The discussion in the Fact Sheet of the Monitoring Requirements in Section XI does not

state or otherwise conclude that the Monitoring Requirements are sufficient to determine compliance

with Receiving Water Limitation VI.A..

67. CCKA submitted comments related to the adequacy of the permits Monitoring

Requirements for determining compliance with the permit terms throughout the administrative process

leading to adoption of the 2014 Permit. See Hunt Dec., Exhibits B-E (CCKA comment letters).

68. Most recently, CCKA submitted a comment that: [T]he law requires that the Permit contain monitoring that is effective in determining compliance with the Permits provisions, including the Final Draft Permits Receiving Water Limitations. We therefore ask the Board to confirm that the existing monitoring requirements in the Final Draft Permit are sufficient to determine compliance with Receiving Water Limitations.

Hunt Dec., Exhibit E at 2-3.

69. In response to CCKAs comment requesting confirmation that the Monitoring

Requirements are sufficient to determine compliance with the Receiving Water Limitations, the State

Board responded: This Permit does not require sampling to determine compliance with water quality standards, only with compliance with the narrative effluent


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limitations (reduce or remove pollutants using BAT/BCT). Additional monitoring requirements can be required under Section XX.B Water Quality Based Corrective Actions and when TMDL implementation requirements are incorporated in this Permit. Additional surface water monitoring that takes place under many other State Water Board programs will also help to inform whether receiving water limitations are being attained.

Hunt Dec., Exhibit F (response to comment 5.4).

70. The additional monitoring requirements that can be required pursuant to section

XX.B. are only applicable after a discharger or the Regional Board determines a discharge is not in

compliance with Receiving Water Limitation VI.A. 2014 Permit, Section XX. As these potential

additional measures are not triggered until after a violation of Receiving Water Limitation VI.A. has

occurred, they provide no data to ensure or evaluate, at the time of permit adoption, that discharges are

not causing or contributing to a violation of water quality standards.

71. The additional surface water monitoring referred to by the State Board is not

monitoring required by the 2014 Permit.

C. The 2014 Permit Does Not Include Effluent Limitations to Implement Any WLAs in Existing TMDLs into the 2014 Permit.

72. There are 36 TMDLs adopted by EPA and/or the State of California that the State Board

has identified in the 2014 Permit as applicable to industrial storm water dischargers. See 2014 Permit,

Finding 38 and Attachment E.

73. Of the 36 TMDLs in Attachment E, 20 have both WLAs specific to industrial storm

water discharges and either are effectively immediately (i.e., provide no extension for industrial storm

water point sources to be required to comply with the WLAs), or have a compliance deadline that

passed prior to adoption of the 2014 Permit.

74. The 20 TMDLs from Attachment E referenced above are the TMDLs for: (1) Napa

River, (2) Sonoma Creek, (3) Santa Clara River (nutrients), (4) Los Angeles River (metals), (5) San

Gabriel River, (6) Harbor Beaches of Ventura, (7) Ballona Creek Estuary, (8) Los Angeles Harbor, (9)

Marina Del Rey Back Basins, (10) Santa Clara River (bacteria), (11) Walker Creek, (12) Oxnard Drain

No. 3, (13) Long Beach City Beaches and LA River Estuary, (14)Los Angeles Area Lakes, (15) Santa

Monica Bay (DDTs and PCBs), (16) Machado Lake, (17) Colorado Lagoon, (18) Calleguas Creek


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Watershed (salts), (19) Calleguas Creek Watershed (metals and selenium), and (20) Los Cerritos

Channel.

75. In the Fact Sheet, the State Board clarified, NPDES permits must contain effluent limits

and conditions consistent with the requirements and assumptions of the waste allocations in TMDLs.

2014 Permit, Fact Sheet at 23.

76. In Finding 39, the State Board stated, it is appropriate to develop TMDL-specific

permit requirements derived from each TMDLs waste load allocation and implementation

requirements.

77. The 2014 Permit does not include effluent limitations consistent with the assumptions

and requirements of the WLAs assigned to industrial storm water discharges, as required by law.

Rather, the State Board postponed incorporation of TMDL-specific requirements. 2014 Permit,

Findings 40-42 and Section VII.A.

78. Finding 42 of the 2014 Permit provides that the State Board will issue a public notice

and conduct a public comment period no later than July 1, 2016 for the reopening of the 2014 Permit to

incorporate TMDL-specific permit requirements.

79. The 2014 Permit provides no deadline for the State Board to complete the process to

incorporate TMDL-specific permit requirements in the 2014 Permit.

80. Moreover, the State Board specifically excused dischargers from having to comply with

the TMDLs requirements, stating that [u]nless directed to do so by the Regional Water Board,

dischargers are not required to take any additional actions to comply with the TMDLs listed in

Attachment E until the State Water Board reopens this General Permit and includes TMDL-specific

permit requirements. 2014 Permit, Fact Sheet at 25.

81. In its comments to the 2011 and 2012 drafts of the permit, the EPA supported the

immediate incorporation of existing applicable WLAs and specifically recommended that the State

Board incorporate existing WLAs as numeric effluent limits. Hunt Dec., Exhibit G at 2 (EPA 2011

Comment) and H at 1 (EPA 2012 Comment).

82. The EPA disapproved of the State Boards decision to postpone the adoption of

applicable WLAs into the Permit and disagreed with the State Boards approach allowing regional


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boards to develop TMDL-specific Permit requirements more than two years after Permit adoption

because this approach would result in a significant delay in the implementation of these TMDLs.

Hunt Dec., Exhibit H at 1(EPA 2012 Comment).

83. The State Board made no findings to demonstrate that its decision to postpone the

incorporation of the TMDLs was consistent with the assumptions and the requirements of the WLAs.

84. The State Boards stated reason for failing to comply with its statutory duty to ensure the

2014 Permit contains effluent limitations that are consistent with the WLAs of existing TMDLs was

that the the development of TMDL-specific permit requirements for each TMDL will severely

delay the reissuance of this General Permit. 2014 Permit, Finding 39.

85. The Clean Water Act does not provide the State Water Board with discretion to decline

to include effluent limitations that implement the WLAs assigned to industrial storm water discharges

in existing TMDLs.

VII. Claims for Relief

FIRST CLAIM FOR RELIEF The State Board Issued the 2014 Permit Without Monitoring Requirements Sufficient to Demonstrate Whether a Permittee is Causing or Contributing to an Exceedence of Any

Applicable Water Quality Standard in Any Affected Receiving Water.

86. Petitioner incorporates each paragraph of this Petition, herein.

87. The State Board prejudicially abused its discretion, failed to proceed in a manner

required by law, and failed to support its findings and conclusions with analysis and facts by approving

the 2014 Permit without monitoring provisions sufficient to demonstrate compliance with Receiving

Water Limitation VI.A.s requirement that discharges not cause or contribute to an exceedence of any

applicable water quality standards in any affected receiving water.

88. The State Boards failure to fully comply with its obligations is ongoing, and continues

to this day. Unless compelled by this Court to do the acts required by law, the State Board will continue

to violate its obligations under the Clean Water Act.

89. No further administrative remedies are available to CCKA for the claims set forth in this

petition. CCKA has no plain, speedy, or adequate remedy in the ordinary course of law because, unless

the Court grants the requested writ(s) of mandate to require the State Board to comply with their legal


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duties, the State Board will proceed with its actions and inactions in violation of the applicable statutes.

90. The State Boards failure to perform its statutory duty has and will cause CCKA, its

members, and the general public to suffer substantial, clear, and certain irreparable injury. Unless and

until the State Board follows the requirements of the Clean Water Act and incorporates monitoring

requirements sufficient to determine a permittees compliance with Receiving Water Limitation VI.A.,

the 2014 Permit cannot ensure that the pollutant reductions required by the Clean Water Act are

achieved in California. As a result, CCKA, its members, and the general public will not be assured of

their rights to clean water afforded by the Clean Water Act.

SECOND CLAIM FOR RELIEF The State Board Issued the 2014 Permit Without Incorporating Effluent Limitations that

Implement Applicable WLAs of Existing TMDLs into the 2014 Permit.

91. Petitioner incorporates each paragraph of this Petition, herein.

92. The State Board prejudicially abused its discretion, failed to proceed in a manner

required by law, and failed to support its findings and conclusions with analysis and facts in its failure

to incorporate effluent limitations that implement applicable WLAs in the 2014 Permit.

93. In adopting the 2014 Permit, the State Board did not comply with the Clean Water Acts

requirement to ensure that the 2014 Permits effluent limitations and conditions are consistent with the

assumptions and requirements of available WLAs of existing TMDLs.

94. In adopting the 2014 Permit, the State Board did not develop water quality-based

effluent limitations consistent with the assumptions and requirements of WLAs in existing TMDLs.

95. The State Boards decision to delay any potential incorporation of TMDL-specific

effluent limitations into the 2014 Permit by more than two years from the date of 2014 Permit adoption

does not constitute compliance with the Clean Water Acts requirements.

96. The State Boards failure to fully comply with its obligations is ongoing, and continues

to this day. Unless compelled by this Court to do the acts required by law, the State Board will continue

to violate its obligations under the Clean Water Act.

97. No further administrative remedies are available to CCKA for the claims set forth in this

petition. CCKA has no plain, speedy, or adequate remedy in the ordinary course of law because, unless


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the Court grants the requested writ(s) of mandate to require the State Board to comply with their legal

duties, the State Board will proceed with its actions and inactions in violation of the applicable statues.

98. The State Boards failure to perform its statutory duty has and will cause CCKA, its

members, and the general public to suffer substantial, clear, and certain irreparable injury. Unless and

until the State Board follows the requirements of the Clean Water Act and incorporates into the Permit

effluent limitations that are consistent with the WLAs of existing TMDLs, the 2014 Permit cannot

ensure that the pollutant reductions required by the Clean Water Act are achieved in California. As a

result, CCKA, its members, and the general public will not be assured of their rights to clean water

afforded by the Clean Water Act.

PRAYER FOR RELIEF

99. California Coastkeeper Alliance therefore prays that this Court:

a. Issue a writ of mandate directing the State Board to immediately reopen the 2014

Permit to include monitoring requirements sufficient to determine that discharges do not cause or

contribute to an exceedence of any applicable water quality standard as required by Receiving Water

Limitation VI.A.

b. Issue an writ of mandate directing the State Board to reopen the 2014 Permit to

include effluent limitations that are consistent with the assumptions and requirements of the 20 TMDLs

with WLAs specific to industrial storm water discharges as follows:

i. For any TMDLs that have concentration-based WLAs, zero discharge

WLAs, and any WLAs that require no translation to become effluent limitations, hold a hearing to

consider adoption the required effluent limitations into the 2014 Permit no later than July 1, 2015; and

ii. For any TMDLs not described in subparagraph (i) above, present TMDL-

specific effluent limitations no later than January 1, 2016, and hold a hearing to consider adoption of

these required effluent limitations into the 2014 Permit no later than July 1, 2016.

c. Award CCKA its costs and fees for bringing suit for State Boards violations of

the Clean Water Act and State law as provided under Code of Civil Procedure section 1021.5.

//

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d. Grant such other relief as the Court deems just and proper.

Dated: May 8, 2014 Respectfully Submitted,

Drevet Hunt LAWYERS FOR CLEAN WATER, INC. Attorneys for Petitioner


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VERIFICATION

I, the undersigned, declare:

I am the Executive Director of California Coastkeeper Alliance, the Petitioner in this action. I

have read the foregoing petition and know its contents. The facts alleged in the above petition are

within my own knowledge and I know these facts to be true.

I declare under penalty of perjury that the foregoing is true and correct. This declaration was

executed on May 8, 2014, in San Francisco, California.

Sara Aminzadeh Executive Director California Coastkeeper Alliance

Baykeeper lawsuit against Water Board to prevent industrial pollution

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