Local municipalities are struggling to stay afloat amidst waves of unprecedented stormwater regulations that forever will change how urban runoff is viewed, treated, and combated in San Diego County, CA.

With the recent appeal of current stormwater legislation, along with proposed new legislation, it's no surprise that local municipalities and citizens are leery. Despite the controversy and confusion surrounding stormwater, however, adherence to the latest regulations still is required by law. Now more than ever, taking measures to understand and comply with these regulations is critical.

Municipal Stormwater Permit Upheld

In a recent landmark case, a San Diego Superior Court judge ruled that the Municipal Stormwater Permit - put into effect February 2001 by the San Diego Regional Water Quality Control Board (RWQCB) to reduce stormwater pollution - was issued legally and will remain in place. The permit requires all San Diego County municipalities - which encompass 18 incorporated cities, the Port of San Diego, and the county itself - to have RWQCB-approved urban runoff management plans in place or face potential enforcement from the RWQCB or a third party.

The Superior Court ruling follows an intense lawsuit initiated by the local chapter of the Building Industry Association (BIA), along with the Cities of San Marcos and Santee, and an association of local fire districts. The plaintiffs argued that the RWQCB lacked authority to issue such a broad and strict permit and that it did so knowing that permit goals could not be achieved by the imposed February 2002 deadline.

The BIA in particular had expressed its opposition since the legislation's early development stages, arguing that the permit undoubtedly would drive up housing costs. The rules challenged in the lawsuit require builders to control erosion at construction sites and to install postconstruction pollution-control devices to reduce urban runoff pollution. According to the BIA, the permit puts an unfair onus on builders to solve a widespread environmental problem.

On the other hand, attorneys for the defense argued that the RWQCB indeed did have the authority to issue the permit and that the agency followed all the correct preparation procedures. The permit had been developed during a seven-year process that included numerous public hearings, negotiations, and reviews. Pro-environmental groups San Diego Baykeepers and the Natural Resources Defense Council also defended the permit.

Despite the ruling, all parties seem to agree on one point: the Municipal Stormwater Permit is the largest, strictest set of water and land-use regulations to hit any municipality in the United States in the last decade. Other than the less-strict Los Angeles permit, there exists no set of standards against which to measure what can be expected in terms of water-quality improvement for San Diego.

To date, the RWQCB has not fined any of the municipalities governed by the permit. However, the RWQCB has been inspecting the programs that local municipalities have developed, as well as overseeing how programs are being implemented and their effectiveness. The BIA is considering an appeal of the Superior Court's decision, perhaps to the state Supreme Court. In the meantime, any local municipality can initiate a public hearing to amend the permit, which is up for renewal every five years, by submitting a petition to the RWQCB.

County Proposes Contradictory Legislation

Adding to the turmoil surrounding stormwater pollution, San Diego County officials recently wrote and sponsored a bill that, by many accounts, directly contradicts the Municipal Stormwater Permit.

Assembly Bill (AB) 1517 proposes that urban runoff should be managed as an environmental resource rather than classified as a pollutant. According to the bill, discharges from storm drains that pollute streams, rivers, and the ocean ìare an inevitable consequence of rainfallî and ìshould not be prohibited directly or indirectlyî by the state.

Opponents of AB 1517 are concerned that the bill would hinder the RWQCB's authority to enforce the directives of the Municipal Stormwater Permit and penalize municipalities that fail to comply. Likewise, it is feared that AB 1517 would weaken enforcement of permit directives by each individual municipality.

So far, local developers appear to be the most likely supporters of AB 1517, which has yet to be presented to the California governor for review. Environmentalists and stormwater pollution regulators have been critical of the bill, contending that it would only reverse the current momentum to combat urban runoff.

Phase II Federal Rules Become Effective

Separate from state and county stormwater regulations, a new wave of federal stormwater legislation recently hit more than 8,000 municipalities across the US - including municipalities in San Diego County. Effective March 10, 2003, municipalities falling under the Phase II umbrella have had to implement compliant stormwater programs or face potential enforcement from EPA.

Compliance Is Key

With no foreseeable end in sight for the unrest surrounding the latest stormwater regulations, the fact remains that targeted municipalities still are required by law to comply - or face enforcement and costly penalties.

Thus, taking a proactive approach can prove to be extremely beneficial. For one-on-one help, municipalities might want to consider working with a qualified environmental consultant. A number of environmental consulting firms have experienced on-staff stormwater specialists who can evaluate existing stormwater programs and help implement required control measures that meet compliance requirements.

To assist municipal separate storm sewer system owners and operators subject to the Phase II rule, the EPA also has developed a ìtoolboxî containing fact sheets, guidance documents, a menu of best management practices, training and outreach efforts, technical research, an information clearing-house, and compliance monitoring and assistance tools.

In addition, municipalities should keep in mind that by complying with stormwater regulations, they also are doing their part to keep public waters clean. Urban runoff is the leading cause of beach closures.

Ralph Vasquez is a senior regulatory compliance specialist and head of the Stormwater Compliance Group of environmental consulting firm Environmental Business Solutions, a wholly owned subsidiary of SCS Engineers in San Diego, CA. Cyndy Day-Wilson, Esq., is chair of the Environmental Law Practice Group at Higgs, Fletcher & Mack LLP in San Diego, specializing in litigation and business counsel to clients involved in federal and state environmental matters.

SW November/December 2003