Water Quality Regulation in California: A Day Late and a Dollar Short?

David Beckman, Senior Attorney & Co-Director, Water Program, Los Angeles, January 29, 2009

Imagine your boss gave you a deadline, a really important one. The kind of deadline that affects the bottom line of whatever it is you do profoundly. And let’s even imagine your boss tells you the deadline is imposed by federal law, and so your organization or company therefore must take it very seriously and comply.

And now let’s imagine you miss the deadline. Not by a day or two. Or by a month. And not even by a year. But by many years: two, three, four, or even five years. What would happen to you?

You probably would be doing something different, right?

Well, not if you regulate water quality in California. There are, in fact, these sorts of really important deadlines that have a critical effect on the quality of the state’s waters. But they are routinely violated by the state regulators, the State Water Resources Control Board and some of the Regional Water Quality Control Boards, entrusted with the duty to protect California’s waterways.

The deadlines at issue require that new plans to control one of the largest sources of water pollution in California-polluted urban runoff-be revised and updated no less than every five years. Here’s the law, from the Code of Federal Regulations:

§ 122.46 Duration of permits (applicable to State programs, see § 123.25).(a) NPDES permits shall be effective for a fixed term not to exceed 5 years.

The requirement for the plans, called discharge permits, originates in the federal Clean Water Act, the nation’s basic law intended to keep waterways clean. The core component of the Clean Water Act is the issuance of permits — basically, limitations on the discharge of pollution — to dischargers of water pollution. Since one of the most important sources of water pollution is polluted urban runoff, when control plans are not updated, the consequences are serious. This is particularly true because the technical approaches to controlling runoff are improving rapidly, and so requirements in pollution control plans issued, say, five years ago do not reflect the best and most effective approaches available today. The equation is simple: missed deadlines equal more pollution.

My colleague Bart Lounsbury and I have been working on improving these permits and we have tried to ferret out how overdue for re-issuance many of them are in California. It’s sometimes a little tricky to nail down the precise date when permits take effect, or expire, but here are just some examples of important permits overdue for re-issuance. The first group of permits below covers pollution discharges in the entire state from industry, construction sites and from thousands of miles of freeways. The second category of permits are regional-specific.

State Water Resources Control Board (statewide permits):

  • Construction General Permit: expired on August 18, 2004.
  • Industrial General Permit: expired on April 17, 2002.
  • Caltrans General Permit: expired on July 15, 2005.

Regional Water Quality Control Boards (regional permits):

  • Contra Costa County Permit: expired on July 21, 2004.
  • Santa Clara Valley Permit: expired on February 21, 2006.
  • Ventura County Permit: expired on July 27, 2005.
  • Los Angeles County Permit: expired on December 12, 2006.

An important thing to keep in mind is that permits remain in effect even when expired until a new one is issued. So no area of the state listed above is without any permit protection.

But the result of these missed deadlines is real and significant: more pollution. Exactly why California cannot meet its basic Clean Water Act obligations, and what can be done about it, is a topic for another post. A new report from a state commission takes a look at the poor performance by state regulators, and offers a range of possible solutions, some of which bear serious consideration. For now, however, it is apparent that fundamental components of the Clean Water Act are not being implemented faithfully in California. The system is simply not working.