From Kevin Pedrotti, Legislative Advocate for the Golden State Builders Exchanges
After 3 years of regulatory fighting and 2 years of litigation, Sacramento Superior Court Judge Lloyd G. Connelly has invalidated the Numeric Effluent Limits (NELs) contained in the Construction General Permit for stormwater runoff issued by the State Water Resources Control Board (SWRCB).
The SWRCB picked a 500 NTU NEL for turbidity (sediment runoff) and 6-9 pH units as the NEL for pH. The SWRCB claimed that they were relying on 3 different studies to support the NELs chosen. The Court, however, characterized the studies as limited or inconclusive and concluded that the NELs lacked substantial evidentiary support. Judge Connelly acknowledged that data could have been developed to support some NEL if the SWRCB had followed the request of CBIA made during the administrative process to use Numeric Action Levels (NALs). Unfortunately, the SWRCB refused.
The Court found that the NELs were subject only to balancing factors under federal law not state law and that the SWRCB is required to comply with the cost-benefit factors set forth in the federal Clean Water Act in establishing NELs. The Court concluded that the NELs are invalid and unenforceable unless and until the SWRCB can produce the data that demonstrates that available technologies will actually achieve the NELs.
This is a very significant victory for the building industry and here is a copy of the decision, CBIA v. SWRCB.
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