$214855 le,
No. S
IN THE SUPREME COURT
OF THE STATE OF CALIFORNIA
STATE DEPARTMENTOF FINANCE,etal,
Plaintiffs and Respondents,
SUPREME COURT
vs. FLED
COMMISSION ON STATE MANDATES, NOV %& 2913
Defendant and Respondent; Frank A. weXsuire Clerk
COUNTY OF LOS ANGELESetal., Deputy CRC
.8.25(b)
Real Parties in Interest and Appellants.
PETITION FOR REVIEW
California Court of Appeal, Second District, Division One
Case No. B237153
Los Angeles Superior Court Case No. BS130730
Hon. Ann I. Jones, Superior Court Judge
BURHENN & GEST LLP
Howard Gest (SBN 076514)
David W. Burhenn (SBN 105482)
624 South Grand Avenue, Suite 2200
Los Angeles, CA 90017
Telephone: (213) 688-7715
Facsimile: (213) 624-1376
Email: hgest@burhenngest.com
Attorneys for Petitioners County of Los
Angeles and Cities of Bellflower, Carson,
Commerce, Covina, Downeyand Signal
Hill
JOHN F. KRATTLI
County Counsel
JUDITH A. FRIES (SBN 070897)
Principal Deputy
OFFICE OF LOS ANGELES
COUNTY COUNSEL
500 West Temple Street, Room 653
Los Angeles, CA 90012
Telephone: (213) 974-1923
Facsimile: (213) 687-7337
Email: jfries@counsel.lacounty.gov
Attorneys for Petitioner County of Los
Angeles
No. S
IN THE SUPREME COURT
OF THE STATE OF CALIFORNIA
STATE DEPARTMENTOF FINANCE,etal,
Plaintiffs and Respondents,
COMMISSION ON STATE MANDATES,
Defendant and Respondent;
COUNTY OF LOS ANGELESetal.,
RealParties in Interest and Appellants.
PETITION FOR REVIEW
California Court of Appeal, Second District, Division One
Case No. B237153
Los Angeles Superior Court Case No. BS130730
Hon. Ann I. Jones, Superior Court Judge
BURHENN & GEST LLP
Howard Gest (SBN 076514)
David W. Burhenn (SBN 105482)
624 South Grand Avenue,Suite 2200
Los Angeles, CA 90017
Telephone: (213) 688-7715
Facsimile: (213) 624-1376
Email: hgest@burhenngest.com
Attorneys for Petitioners County of Los
Angeles and Cities of Bellflower, Carson,
Commerce, Covina, Downey and Signal
Hill
JOHN F. KRATTLI
County Counsel
JUDITH A. FRIES (SBN 070897)
Principal Deputy
OFFICE OF LOS ANGELES
COUNTY COUNSEL
500 West Temple Street, Room 653
Los Angeles, CA 90012
Telephone: (213) 974-1923
Facsimile: (213) 687-7337
Email: jfries@counsel.lacounty.gov
Attorneys for Petitioner County of Los
Angeles
TABLE OF CONTENTS
PAGE
ISSUES PRESENTED on. eccecsssesssssessssesseseecsesscsaesesscavatenseveneners 1
INTRODUCTION ha eeecccsssssssstesesecseesesessscsscssssasererseeeeneees 1
STATEMENTOF THE CASE.Q.......cccccccsssssssesesesessssseesscscsssessseassceceaes 7
A. Course of Proceedings Below...........ccccccssssssssssstseseseseres 7
B. The Statutory Framework for the
Issuance ofNPDES Permits in California... 9
C. The Permit and the “Maximum Extent Practicable”
Standard icessscssssessessessssssseeesessecssssessssseneeeees 12
D. The Role of the Commission........c.ccccccesesesssssssssssssseeees 13
WHY REVIEW IS NECESSARY.......ccccsesessssessessscescssssssssssseaverseeees 14
I.
I.
UI.
REVIEW IS WARRANTED BECAUSE THE COURT OF
APPEAL’S HOLDING THAT CLAIMS ARISING IN THE AREA
OF CLEAN WATER ARE NOT SUBJECT TO ANALYSIS
UNDER CALIFORNIA’S MANDATE JURISPRUDENCEIS
DIRECTLY CONTRARY TO THE DECISION OF THIS COURT
IN CITYOFBURBANKRECOGNIZING THAT NPDES PERMITS
CAN IMPOSE REQUIREMENTS BEYOND THOSE
MANDATED BY FEDERAL LAW AND THE COURT OF
APPEAL’S DECISION IN LONG BEACH UNIFIED THAT THE
STATE CREATES A STATE MANDATE WHENIT IMPOSES
REQUIREMENTS BEYOND THOSE DICTATED BY FEDERAL
LAW OR REMOVES LOCAL AGENCYDISCRETION AS TO
HOW TO COMPLY WITH A FEDERAL STATUTE............ 14
REVIEW IS WARRANTED TO ADDRESS THE IMPORTANT
AND RECURRINGISSUES OF WHETHER A COURT OF
APPEAL CAN SUBSTITUTE ITS JUDGMENTFOR THAT OF
THE COMMISSION WHERE THE FEDERAL REQUIREMENT
IS NOT DEFINED BY FEDERAL STATUTE AND TO WHAT
AUTHORITY THE COMMISSION AND THE COURTS
SHOULD LOOKIN DEFINING THAT FEDERAL
REQUIREMENT one cceccssssssscsscsescessseseeseseesessecesscsvevsesseaaes 21
THE COURT OF APPEAL’S HOLDING THAT THE STATE
DID NOT CREATE A STATE MANDATE WHENIT SHIFTED
TO MUNICIPALITIES THE OBLIGATION TO INSPECT
COMMERCIAL, INDUSTRIAL AND CONSTRUCTIONSITES
CREATES A CONFLICT WITH HAYES v. COMMISSION ON
STATE MANDATESAND RAISES AN IMPORTANT
QUESTION OF LAW WHICH REQUIRES THIS COURT’S
RESOLUTION oweeesesstsesesssseseeseeseeseesecsessssssstsssseaeees 25
CONCLUSION —hieceescsssstseseseseseesesesecarsessesessavscsvavesseaces 28
TABLE OF AUTHORITIES
PAGE
CASES
Arkansas v. Oklahoma (1992) 503 U.S. Q1icscccccsccsssessessscsssseseseesceccoss 10
Building Industry Ass’n. ofSan Diego County v. State Water
Resources Control Board (2004)
124 Cal.App.4™ 866 o..cccecsessscsscsssscsecssssssssecsssseeessestecseeseeeaes 11, 23
City ofArcadia v. State Water Resources Control Board (2006)
135 Cal.App.4 1392 .cccessssscsesssssessscssesssssesscassnecseasscssesens 5
City ofBurbankv. State Water Resources Control Board (2005)
BS Cala 613 iscesssssessessssesesesecsecsssssscsssserseceesecsuersass passim
County ofLos Angeles v. Commission on State Mandates (2007)
150 Cal.App.4 898 oo. cccccscscsesesscssssssssssssssssssscsrseeseecrseesees 8
County ofSan Die ov. State ofCalifornia (1997)
TD Cal. 68 iccceessssceeeseseseesesscssseucstsssessnecseessesseees 2
DepartmentofFinance v. Commission on States Mandates
Case No. B237153 (October 16, 2013)(slip op.) ...ccecceeeeeee passim
Hayesv. Commission on State Mandates (1992)
1] Cal.App.4% 1564 ooccccseesessessssscssscsscsscesescestsecsrsesscereas passim
PUD No. | ofJefferson County v. Washington Dept. ofEcology (1994)
STL US. 700 icecessesssesseseseseessessssssassssssaavseseeterseees
Kinlaw v. State ofCalifornia (1991) 54 Cal.3d 326 vo.ecccccssecsssssseseess 13
Long Beach Unified SchoolDistrict v. State ofCalifornia (1990)
225 Cal.App.3d 155 oo.ccsssesscsessscesesesessssssssssscscessesssseceesaees passim
Stgte ofCalifornia v. United States Departmentofthe Navy
(9% Cir. 1988) 845 F.2d 222.ccccccccsssscsessscssssssssssavssscsereecetacseatsees 11, 18
Voices ofthe Wetlands v. State Water Resources Control Board (2011)
52 Cal 499 isescsesessesecsescsecssessssssssessnecseseceeeetasseess ll
Article XID A aceecesesesesesesessescsesesessssecscscsesssseetacsracseerens 2
Article XIII B, Section 6 veecsccscsccsssssssscssssesecscsessceecessecacsesstassseaesees passim
il
STATUTES
Federal Statutes
20 U.S.C. § L401 ef seq. eeeecesssscetesceessesessessseecseseeseseceesenessssesens 26
33 U.S.C. § 1251 ef seq. eceseessssescsscscessesseeesessssesseseesseeseeseessesssesses 2
B83 US.C. §1251(B) aeeeeceescseetetsesesesesesseseeseseeseseecseseeens 10
BB US.C. § 1311 (a) ceeeeecceessetsesseecseeeseessseeesseessesseseeneesens 10
33 U.S.C. § IS1B(A)A)(C) eeeeeececcssssssssccssesescsessseessseeesseessessesssensesens 5
B83 USC. § 1342 ieceeteeececesetsesssecesseesesseseseeeeseseessseeens 10, 12
33 U.S.C. §1342(a) aeeeessscseeteeseeeseesssessesesseeeeeseeseesneenens 10
33 U.S.C. § 1342(D) eeeessccssssessessessessessseeeesesecesessessseseaseasases 10, 11
33 ULS.C. § 1342(d)(2) eee eeeesecseesseceeseseeseseseesssseesesesseessecseaeas 19
33 ULS.C. § 1342(p)(3)(B)GI) oo.cesecceeeeeeeseeeseesecseeeseseeseesseneas 3, 12, 22
BB US.C.§ 1370 aeceesseteceeeesesseseeeesessseeesesesesseeeesecseeaees 10
California Statutes
Govt. Code § 17516 icesssescesessessesessesesessesesseeseesesseaneeesess 14
~ Govt. Code § 17516(C) ——ssssssssssssssssssssssssssusessissasasasasisvisseseceevesesssse 7,8
Govt. Code § 17551 eeiesesessssessessessesesseseseseeseeseeseseeseeesseesens 14
Govt. Code § 17552 aciccscsccsessscesscesressesssssecsscaccesssescsevsscesaseas 13
Govt. Code § 17553 eseeesescsesesceeesessssssesseseesseseserseeeneassess 14
Govt. Code § 17556(C) eeecesseseessssessesseseesesessssesceseeeesseeeeseeasseesess 14,15
Govt. Code § 17564 ——eececesssscsscesessetsesessessseseeseesessesesseesseessess 15
Water Code § 13000 ef seq. ..ecccesscccsscessssssessssscssessessecesecsessenssssessens 2,9
Water Code § 13001 iisecscccsssecctessecsscsesessesssessscssssessacees 9
Water Code § 13241 eeceseeceecsstsetseseessscescsessessessssesaeenesess 18
Water Code § 13260 eeeecesssscssesseessesecseeseseceecseseesseseesseenseas 9
Water Code § 13263 cscccssssceccssesessccssecssccssssesessecessasseesesecenes 9, 18
Water Code §§ 13370-13389 oo. csceccscsssecersssssesessecsecsssseessessesssessees Il
ili
Water Code § 13377 —aneseisesssssssesseceeeseeterseeseceessseeeeeenesasensenene 11, 12
REGULATIONS
AO CAFR. § 122.26(c)(L) ceseeescssssssecssssssssecssssccecsensssseveeeesnssavenesseseeens 25
AO C.F.R. § 122.26(d)(2)(iV) soesecsssssseecsssssesssscssesssssssesesscessnsveseeseeeenecen 16, 21
40 C.F.R. § 122.26(d)(2)(iv)(A)(1)-(3) soseseessccsccssssssscesccssssscesseeeceeseeen 13, 16
40 C.E.R. § 122.26(d)(2)(iV)(A)(5) vessssssssssscssssccssssssssssnstsseseesesssnesssseee 20
4O C.F.R. § 122.26(d)(2)(iv)(B)(L) seseesssssesescssscssssssssessessssssssetseseeceseeen 16
40 C.F.R. § 122.26(d)(2)iv)(C)L) seesessssssecscccccsssssssecseecesssseeseceecensenen 16
40 CLF. § 122.26(d)(2)(iv)(D)..sssssescssssesessccsscssssssvevessceassuscsecseceesenee 17
AO CAFR. § 122.28(a)(2) sessesessssssssssessccsssssssssssssssssssssesessssssssnsssesssees 25
AO CAFR. § 122.34 vaecesccssssssssscssscsssssssssssnesssssscssesesnssnesssnsenses 22
AO CER. § 123.11) seeeccssssssseccsssssvecscssscessssssuvcsecensnuseeseeseseesnsan 10
AO CER. § 123.22 cveseesscsssssssssecessssssssssssnsunvecssecsesssenssessesseneees 11
AO CER. § 124.8(a)(4) ceesecsscsscssssessessssssssssssssssssssevcsesseesssstessesesers 13
AO CER. § 124.56(a) sessesesccccssssseseccssssssssssssssssssesscsesssessssesseneenees 13
OTHER AUTHORITIES
55 Fed. Reg. 47990 (Nov. 16, 1990) ....scscssssssssssssssssssesscsssssseseseseeeeeen 12
iv
ISSUES PRESENTED
1. Is a state mandate created within the meaning ofarticle XIII
B, section 6, of the California Constitution where the federal Clean Water
Act gives municipalities discretion in designing their stormwater programs,
and the state usurps that discretion by mandating the manner in which the
municipalities must implement the program?
2. Did the Court of Appeal err in substituting its judgment for
that of the Commission on State Mandates as to what constitutes a state
mandate versus a federal mandate, where the federal requirement, here the
“maximum extent practicable” standard under the Clean Water Act, is not
defined by federal statute?
3. To what authority should the Commission on State Mandates
and the courts look to define a federal as opposed to a state mandate within
the meaning ofarticle XIII B, section 6, where the federal requirementis
stated in general terms and not defined by federal statute?
4. Did the State create a state mandate within the meaning of
article XIII B, section 6, whereit shifted certain inspection obligations from
itself to local municipalities under a permit issued by a California Regional
Water Quality Control Board?
INTRODUCTION
Article XIII B, section 6(a), of the California Constitution provides
that, wheneverthe Legislature or any state agency mandates a new program
or higherlevel of service on any local government, the State shall provide a
subvention of funds to reimburse that local government for the cost of the
mandate.
As this Court has held, the purpose ofarticle XIII B, section 6(a), is
“to preclude thestate from shifting financial responsibility for carrying out
1
governmental functions to local agencies, which are ‘ill-equipped’ to
assume increased financial responsibilities because of the taxing and
spending limits that Articles XIII A and XIII B impose.” County of San
Diegov. State ofCalifornia (1997) 15 Cal.4” 68, 81.
This petition raises the issue ofhow article XIII B, section6, is to be
applied to mandates being imposed by California Regional Water Quality
Control Boards (“regional boards”) on municipalities through issuance of
municipal stormwater permits. These permits constitute both “waste
discharge requirements” under the California Porter-Cologne Water Quality
Act (“Porter-Cologne Act”), Water Code § 13000 et seg., and National
Pollutant Discharge Elimination System (“NPDES”) permits under the
federal Clean Water Act (“CWA”), 33 U.S.C. § 1251 ef seq.
The Commission on State Mandates (“Commission”) found that the
municipal stormwater permit at issue here imposed two categories of state
mandates within the meaning ofarticle XIII B, section 6, and that the
County of Los Angeles (“County”) and cities that were permittees were
entitled to a subvention of funds for one of those mandates. The Los
Angeles County Superior Court reversed the Commission’s decision and
the Second Appellate District Court of Appeal affirmed, finding thatall of
the permit’s mandates were federal, as opposed to state, mandates. The
Court of Appeal held that “general-purpose mandate analysis is of limited
utility in the area of clean water law ... .” Department of Financev.
Commission on State Mandates, Case No. B237153 (October 16, 2013),
slip op. at 34.
In reaching this result, the Court of Appeal declined to follow Long
Beach Unified School District v. State ofCalifornia (1990) 225 Cal.App.3d
155 (‘Long Beach Unified’), which held that, where the state removes the
2
discretion of a local agency as to how to comply with a federal program and
instead directs the manner of compliance, the state has created a state
mandate. 225 Cal.App. 3d at 173. The Court of Appeal also declined to
follow Hayes v. Commission on State Mandates (1992) 11 Cal.App.4™
1564 (“Hayes”), which held that, where the state “freely chooses” to shift
an obligation created under a federal program from itself to a local agency,
the state also creates a state mandate. 11 Cal.App.4” at 1593-94. See Slip.
Op.at 34.
The Court of Appeal also declined to determine whether substantial
evidence supported the Commission’s decision. Instead the court
substituted its judgmentfor that of the Commission and held that the permit
requirements were not state mandates as a matter of law (slip op. at 36).
The Court of Appeal based this holding on its own finding that the permit’s
mandates fell within the “maximum extent practicable” standard imposed
by the CWA,33 U.S.C § 1342(p)(3)(B)(iii), a standard not defined by that
statute. In doing so, the Court of Appeal gavelittle weight to this Court’s
holding in City ofBurbank v. State Water Resources Control Board (2005)
35 Cal.4™ 613, that NPDES permits are not simply federal permits, but may
contain both federal and state requirements, with the regional boards acting
not only in lieu of the federal government, butalso as a state agency subject
to state law. See 35 Cal.4" at 618, 627-28.
The Court of Appeal’s disregard of mandate jurisprudence in cases
in the area of clean water law is unprecedented and has created great
uncertainty for cities and counties throughout the state. No court
interpreting article XIII B, section 6, has ever exempted an entire area of
substantive law from established mandate jurisprudence as the Court of
Appeal did here. Whether such an exclusion is appropriate is an important
3
issue of law statewide that goes beyondthe claimsin this case, as mandates
can arise from many federal requirements, not just those imposed by the
Clean Water Act.
The Court of Appeal’s decision will also have significant impact on
financial planning by cities and counties statewide. There are currently in
effect 20 municipal stormwater permits issued by regional boards to
California cities and counties. These 20 permits cover hundredsofcities as
well as 16 counties, including the large metropolitan counties of Los
Angeles, San Diego, Alameda, Contra Costa, San Mateo, Orange, Santa
Clara and Riverside.' The State Water Resources Control Board (State
Board”) has also issued a general “Phase II” municipal stormwater permit
for smaller cities, who will be required to comply with that permit.’
The financial obligations imposed by these permits are significant.
The County estimated its cost to comply with one of the state mandates
found by the Commission, the installation and maintenance of trash
receptacles at transit stops, at approximately $230,000 forinstallation plus
employee time and $375,570 in projected annual maintenance costs
thereafter (AR 44-45). These costs, however, pale in comparison to those
being imposed by the state in more recent municipal stormwater permits.
For example, the California Regional Water Quality Control Board, Los
Angeles Region (“Regional Board”) in November 2012 issued a new
' A listing of these permits and permittees can be found on the State Water
Resources Control Board (‘‘State Board”) websiteat:
www.swrcb.ca.gov/water_issues/programs/stormwater/phase i municipal.s
html.
* The Phase II municipal stormwater permit program and its permittees is
described on the State Board websiteat:
www.swrcb.ca.gov/water_issues/programs/stormwater/phase ii municipal.
shtml.
stormwater permit for municipal dischargers within the coastal watersheds
of Los Angeles County, requiring permittees to implement programs to
comply with 33 “Total Maximum Daily Loads (“TMDLs”)” previously
adopted by the Regional Board or the United States Environmental
Protection Agency (“EPA”).’ The Regional Board staff report for the Los
Angeles River Bacteria TMDL, one of those TMDLS,included an estimate
as high as $591 million to achieve compliance with this TMDL during dry
weather, and, extrapolating from a cost estimate for a bacteria TMDL in
another watershed, a potential cost as high as $5.4 billion for both dry and
wet weather compliance.*
Municipal permittees largely use general funds to pay for these and
other permit programs. Regional boards throughout the state are imposing
> A TMDListhe level of pollutants that a water body can receive andstill
meet water quality standards, taking into consideration seasonal variations
and a margin of safety. 33 U.S.C. 1313(d)(1)(C). See generally City of
Arcadia v. State Water Resources Control Board (2006) 135 Cal.App.4h
1392, 1404-05.
* The 2012 stormwater permit for municipal discharges within the coastal
watersheds of Los Angeles County (Order No. R4-2012-0175)is on the
Regional Board’s websiteat:
http://www.waterboards.ca.gov/losangeles/water_issues/programs/stormwa
ter/municipal/index.shtml. The inclusion of the 33 TMDLsinto the permit
can be found commencing on page 141 of the permit. Permit Part VILE.1.c.
requires compliance with the TMDLsconsistent with the assumptions and
requirements ofthe “waste load allocations” established in the TMDLs.
The Los Angeles River Watershed Bacteria TMDLstaffreport is on the
Regional Board’s websiteat:
http://www.waterboards.ca.gov/losangeles/board_decisions/basin plan am
endments/technical_documents/bpa_80_R10-007_td.shtml. Page 81 ofthat
staff report discusses the cost of complying with that TMDL during wet and
dry weather. Page 92 summarizesthe cost analysis to comply with the
TMDLonly during dry weather.
such costs in municipal stormwater permits issued to municipalities within
their jurisdiction. In order to properly plan and fund these programs,
municipalities need to know whether they are entitled to a subvention of
funds.
Issues of mandate jurisprudence are already arising under many of
these permits. In addition to the test claim at issue in this case, there are ten
test claims currently pending before the Commission, all of which seek a
subvention of funds for mandates imposed by stormwater permits issued to
cities and counties.” It is essential that this Court grant review ofthis case
in order to provide guidelines for resolution of these claims, which all
involve the important and recurring issue of the extent to which a municipal
stormwater permit imposes a state mandate subject to subvention.
> A list of the pendingtest claims involving municipal stormwater permits
can be found on the Commission website at
www.csm.ca.gov/docs_pending/la tc.pdf. See Commission on State
Mandates Test Claim Nos. 09-TC-03, filed June 30, 2010 by the County of
Orange, Orange County Flood Control District, and various cities within
Orange County; Test Claim 10-TC-01, filed October 11, 2010 by the City
of Brisbane; Test Claim 10-TC-02, filed October 13, 2010 by the City of
Alameda; Test Claim 10-TC-03, filed October 14, 2010 by the County of
Santa Clara; Test Claim 10-TC-05, filed November30, 2010 by the City of
San Jose; Test Claim 10-TC-07, filed January 31, 2011 by the Riverside
County Flood Control and Water Conservation District, the County of
Riverside, and cities within Riverside County; Test Claim 10-TC-10, filed
June 30, 2011 by the San Bernardino County Flood Control District, the
County of San Bernardino and cities within the county; Test Claim 10-TC-
11, filed June 30, 2011 by the County of Orange, the Orange County Flood
Control District and cities within Orange County; Test Claim 11-TC-01,
filed August 26, 2011 by the County of Ventura and the Ventura County
Watershed Protection District; and Test Claim 11-TC-03, filed November
10, 2011, by the Riverside County Flood Control & Water Conservation
District, the County of Riverside, and cities within the county.
Finally, it is essential for the Court to grant review to provide
guidance on how the Commission and the courts should address the
question of a state versus federal mandate when the federal statute itself
does not define what may constitute that federal mandate. This is an
important and recurring issue in mandate cases, not only those arising from
obligations under the CWA.
STATEMENT OF THE CASE
A. Course of Proceedings Below
In 2001, the Regional Board issued the stormwater permit at issue in
this case (“Permit”). In this Permit, the Regional Board imposed various
obligations on the County, the Los Angeles County Flood Control District
and 84cities, including requiring permittees to place trash receptacles at
public transit stops (Part 4.F.5.c.3) (1 Clerk’s Transcript (“CT”) 74)°; to
inspect commercial facilities such as restaurants and gas stations (Part
4.C.2.a) (1 CT 53-56); to inspect certain industrial facilities subject to a
State Board-issued general permit (Part 4.c.2.b) (1 CT 56); and to inspect
certain construction sites subject to a State Board-issued general permit and
have a program for permit approvals andstaff training with respect to these
construction sites (Part 4.E) (1 CT 68-70).
The County and several cities, including the Cities of Bellflower,
Carson, Commerce, Covina, Downey and Signal Hill (“Cities”) first filed
test claims with the Commission in 2003. The Commission rejected those
claims, citing former Govt. Code § 17516(c), which exempted from the
term “executive order” any orders issued by regional boards or the State
Board. The Los Angeles County Superior Court subsequently granted a
6«CT _”refers to the volumeofthe Clerk’s Transcript and the page
number.
petition for writ of mandate brought by the Cities and County and ordered
the Commissionto hear the claims.
The Second Appellate District Court of Appeal, in County of Los
Angeles v. Commission on State Mandates (2007) 150 Cal. App.4™ 898,
904, 920, affirmed the superior court’s judgment and struck down former
Govt. Code § 17516(c) as unconstitutional. In remanding the matter back
to the Commission, the court stated: “A review of the pleadings and the
matters that may bejudicially noticed [citations] leads to the inescapable
conclusion that whether the two obligations in question constitute federal or
state mandates presents factual issues which must be addressed in the first
instance by the Commission ... .” Jd. at 917-18.
Following the re-filing of the test claims (Administrative Record
(“AR”) 1535-2452; 2479-2670), the Commission on July 31, 2009, found
that the permit’s trash and inspection obligations constituted state
mandates. The Commission further found that the state was
constitutionally required to reimburse the Cities and County for the trash
receptacle obligation (AR 5603, 5625) but not the inspection obligations,
because the Cities and County hadtheability to assess fees to pay for them
(AR 5625). (See also 1 CT 97-167.)
The Department of Finance, the State Board and the Regional Board
(collectively, the “State agencies”) petitioned the superior court to set aside
the Commission’s findings (1 CT 11). The State agencies argued that the
Permit was issued pursuant to the CWA,and that the Commission had
failed to consider whether the obligations were federally mandated pursuant
to the “maximum extent practicable” (“MEP”) standard set forth in the Act.
The Cities and County filed a cross-petition seeking review of the
Commission’s decision that the Cities and County had the ability to assess
8
fees to pay for the inspection obligations (2 CT 266). The superior court
agreed with the State agencies and ordered the Commissionto set aside its
decision (4 CT 726). The superior court did not reach the Cities and
County’s cross-petition.
The Cities and County appealed the superior court’s decision to the
Second Appellate District Court of Appeal. In its October 16, 2013
published opinion, the Court of Appeal affirmed the superior court.
Finding that “general-purpose mandate analysis is of limited utility in the
area of clean water law precisely because the Clean Water Act recognizes
that the states function, for practical purposes, as arms of the EPA,” the
court substituted its judgment for that of the Commission and found that the
trash receptacle and inspection obligations were federal mandates as a
matter of law (Slip op. at 34, 36). No petition for rehearing wasfiled.
B. The Statutory Framework for the Issuance of NPDES
Permits in California
In 1969, three years before Congress enacted the Clean Water Act,
the California Legislature enacted the Porter-Cologne Act, Water Code §
13000 et seq. In this legislation, the Legislature established the State Board
and the nine regional boards: as the agencies responsible for the
coordination and control of water quality. Water Code § 13001. Underthe
Porter-Cologne Act, any person who discharges or proposes to discharge
“waste” that could affect the quality of the “waters of the state” is required
to obtain a waste discharge requirement (“WDR”) permit. Water Code §§
13260 and 13263.
In 1972 Congress adopted what became known as the CWA. In
adopting the Act, Congress expressly preserved the right of “any State or
political subdivision thereof’ to “adopt or enforce” provisions addressing
9
any “standard or limitation respecting discharges of pollutants” or any
requirement “respecting control or abatement of pollutants,” so long as
such provisions were notless stringent than federal law. 33 U.S.C. § 1370.
See also 40 CFR § 123.10) (“Nothing in this part precludes a State from:
(1) Adopting or enforcing requirements which are more stringent or more
extensive than those required underthis part; (2) Operating a program with
a greater scope of coverage than that required underthis part.”). As Justice
Stevens wrote in PUD No. I of Jefferson County v. Washington Dept. of
Ecology (1994) 511 U.S. 700, 723 (Stevens, J. concurring), “Not a single
sentence, phrase, or word in the Clean Water Act purports to place any
constraints on a State’s powerto regulate the quality of its own waters more
stringently than federal law might require.”
Under the CWA,the discharge of a pollutant to a navigable water of
the United States is prohibited unless the discharge is in accordance with
one of the statutory provisions of the Act. 33 U.S.C. § 1311(a). One of
those provisions is the NPDES permit program. 33 U.S.C. § 1342.
The CWA specifically provides that states can administer NPDES
permit programs. 33 U.S.C. § 1342(b). Such a decision is purely
voluntary; if the state chooses not to administer this program, NPDES
permits are issued by the EPA. See 33 U.S.C. § 1342(a).
’ The United States Supreme Court has held that the “Clean Water Act
anticipates a partnership between the States and the Federal Government,
animated by a shared objective ... .” Arkansas v. Oklahoma (1992) 503
U.S. 91, 101, quoted in City ofBurbank, 35 Cal.4th at 620. At the adoption
of the CWA, Congress stated that “it is the policy of the Congress to
recognize, preserve, and protect the primary responsibilities and rights of
States to prevent, reduce, and elimination pollution... .“ 33 U.S.C. §
1251(b).
10
When a state administers a NPDES program, the state is acting in
lieu of EPA’s program. Under 33 U.S.C § 1342(b), the state administers
“its own permit program for discharges into navigable waters,” which
program is to be established and administered “under State law.”
(Emphasis supplied.) See also 40 C.F.R. § 123.22 (“Any State that seeks to
administer a program . . . shall submit a description of the program it
proposes to administer in lieu of the Federal program under State law . . .”)
To effectuate California’s issuance of NPDES permits, the
Legislature in 1972 added Chapter 5.5 to the Porter-Cologne Act, Water
Code §§ 13370-13389. Building Industry Ass’n. of San Diego County v.
State Water Resources Control Board (2004) 124 Cal.App.4" 866, 875. In
doing so, the Legislature ensured that California law would mirror the
CWA’s “more stringent” savings clause by authorizing the State and
regional boards to not only issue permits that complied with the CWA’s
requirements, but also to include in them “any morestringent effluent
standards or limitations necessary to implement water quality control plans,
or the protection of beneficial uses, or to prevent nuisance.” Water Code §
13377.
The California permit program thus is not a delegation of federal
authority, but a state permit program in lieu of the federal NPDES program.
40 C.F.R. § 123.22; State of California v. United States Departmentofthe
Navy (9™ Cir. 1988) 845 F.2d 222, 225 (CWAlegislative history “clearly
states that the state permit programs are ‘not a delegation of Federal
Authority’ but instead are state programs which ‘function . . . in lieu of the
Federal program.’”); Voices of the Wetlands v. State Water Resources
Control Board (2011) 52 Cal.4" 499, 522 (“It is true, as these parties
observe, that the Clean Water Act does not directly delegate a state agency
11
the authority to administer the federal clean water program; instead, it
allows the EPA director to “suspend” operation of the federal permit
program in individual states in favor of EPA-approved permit systemsthat
operate under those state’s own lawsin lieu of the federal framework.”’)
NPDESpermits issued by the regional boards, therefore, are issued
by state agencies under a state program. Such NPDESpermits can include
both federal requirements and any other state provisions that are more
stringent than the federal requirements. As this Court recognized in City of
Burbank, these additional requirements are state-imposed and subject to the
requirements of state law. 35 Cal.4™ at 627-28.
Cc. The Permit and the “Maximum Extent Practicable”
Standard
The Permit was issued as an NPDESpermit under 33 U.S.C. § 1342
and as waste discharge requirements under Water Code § 13377. The
CWA requires operators of municipal separate storm sewer systems
(“MS4”), such as those operated by the Cities and County, to have NPDES
permits that require, inter alia, “controls to reduce the discharge of
pollutants to the maximum extent practicable.” 33 USC. §
1342(p)(3)(B)(iii). |
The CWA does not define “maximum extent practicable.” To
provide guidance to regulators and permittees as to the required content of
municipal stormwater permits, the EPA promulgated regulations in 1990
setting forth the items that must be included in MS4 permits and permit
applications. 55 Fed. Reg. 47990 (November16, 1990).
These regulations are very specific with respect to certain municipal
stormwater permit requirements. For example, they require stormwater
management programs to inspect and monitor municipal landfills,
12
hazardous waste treatment facilities, industrial facilities subject to Section
313 of Title III of the Superfund Amendments and Reauthorization Act of
1986, and those industrial facilities that the permittee determines are
contributing a “substantial pollutant load” to the MS4. 40 C.F.R. §
122.26(d)(2)(iv)(C).
As to other permit obligations, however, the regulations are not
specific but instead allow permittees to design their own programs to
implement the MEP standard. These permittee-designed programs include
maintenanceactivities and a maintenance schedule forstructural controls to
reduce pollutants in discharges, planning procedures to develop and enforce
controls to reduce discharges from areas of new development and
significant redevelopment, and operating and maintaining public streets,
roads and highways to reduce the impact on receiving waters. See 40
C.F.R. § 122.26(d)(2)(iv)(A)(1)-(G3).°
D. The Role of the Commission
Article XIII B, section 6, requires that the state provide a subvention
of funds for any “new program or higher level of service” imposed by the
state on any local government. The Commission has sole authority to
adjudicate all disputes over the existence and reimbursement of state-
® These and other regulations were cited by the Regional Board in the
Permit’s Fact Sheet as the legal authority for the inclusion of the trash
receptacle and inspection requirements in the Permit’s Fact Sheet. See Fact
Sheet, pp. 19, 25 (inspection requirements) and 38 (trash receptacle
requirements), found on
the website of the Regional Boardat:
http://www.waterboards.ca.gov/losangeles/water_issues/programs/stormwa
ter/municipal/los_angeles_ms4/staffreportfactsheetfinal.pdf.
Federal regulations require that a fact sheet accompany any NPDES
permit to set forth the rationale and authority for its provisions. 40 C.F.R. §
124.8(a)(4); 40 C.F.R. § 124.56(a).
13
17552; Kinlaw v. State of California (1991) 54 Cal.3d 326, 333. Local
agencies seeking a subvention of state funds mustfile a test claim with the
Commission. Govt. Code § 17551. The Commission acts on that test claim
at a public hearing at which evidence may be presented by the claimant, the
Department of Finance, any other state agency affected by the claim, or any
other interested person. Govt. Code § 17553.
Govt. Code § 17556(c) provides that the Commission shall not find
costs mandated by the state if the statute or executive order “imposes a
requirement that is mandated by federal law or regulation and results in
costs mandated by the federal government, unless the statute or executive
order mandates costs that exceed the mandate in the federal law or
regulation.”
WHY REVIEW IS NECESSARY
I. REVIEW IS WARRANTED BECAUSE THE COURT OF
APPEAL’S HOLDING THAT CLAIMS ARISING IN THE
AREA OF CLEAN WATER ARE NOT SUBJECT TO
ANALYSIS UNDER CALIFORNIA’S MANDATE
JURISPRUDENCE IS DIRECTLY CONTRARY TO THE
DECISION OF THIS COURT IN CITY OF BURBANK
RECOGNIZING THAT NPDES PERMITS CAN IMPOSE
REQUIREMENTS BEYOND THOSE MANDATED BY
FEDERAL LAW AND THE COURT OF APPEAL’S
DECISION IN LONG BEACH UNIFIED THAT THE STATE
CREATES A STATE MANDATE WHEN IT IMPOSES
REQUIREMENTS BEYOND THOSE DICTATED BY
FEDERAL LAW OR REMOVES LOCAL AGENCY
DISCRETION AS TO HOW TO COMPLY WITH A
FEDERAL STATUTE
The Commission found that both the trash receptacle and inspection
obligations imposed by the Permit were state mandates.’ In reaching this
conclusion, the Commission applied the following five principles:
° The Commission also found that the obligations were an executive order
14
(1) Under the CWA,eachstate is free to enforce its own water
quality laws so longas its requirements are not “less stringent” than those
set out in the CWA(1 CT 119).
(2) This Court in City of Burbank, 35 Cal.A™ at 628,
acknowledged that a NPDES permit may contain terms that are both
federally mandated as well as terms that exceed federal law (Id.).
(3) An executive order can constitute a reimbursable state
mandate where the order imposes requirements that go beyond federal
requirements or removesa local agency’s discretion as to how to comply
with a federal requirement and directs the manner of compliance, citing
Long Beach Unified, 225 Cal.App.3”at 172-74 (1 CT 119; 1 CT 126).
(4) Where a federal law imposes a mandate on the state, and the
state has a choice between complying with the federal obligation itself or
imposing that obligation on a local agency, imposition of the obligation on
the local agency creates a reimbursable state mandate. Hayes, supra, 11
Cal.App.4™ at 1593-94 (1 CT 118).
(5) Govt. Code § 17556(c) states that the Commission shall not
find costs mandatedbythestate if the statute or executive order imposes a
requirement that is mandated by federal law or regulation “unless the
statute or executive order mandates costs that exceed the mandate in that
federal law or regulation” (/d.).
With respect to the trash receptacle obligation, the Commission
found both that the obligation exceeded the requirements of the CWA and
within the meaning of Govt. Code § 17516, constituted new programs or
higher level of service, and that the Cities and County had incurred costs in
excess of $1,000 as required by Govt. Code § 17564 (1 CT 115-17; 144-
47).
15
federal regulations and that the state “freely chose” to impose it on the
Cities and County (1 CT 122-27). In particular, the Commission analyzed
the federal regulation cited by the State Board and the Regional Board as
the alleged federal authority for the receptacle requirement, 40 C.F.R. §
122.26(d)(2)(iv)(A)(3). That regulation provides that the proposed
management program required of permittees under 40 C.F.R. §
122.26(d)(2)(iv) shall include a “description of practices for operating and
maintaining public streets, roads and highways and procedures for reducing
the impact on receiving waters of discharges from municipal storm sewer
systems....”
The Commission found that this regulation, which related only to “a
description of practices” and not the implementation of those practices, did
not expressly require the installation and maintenance of the receptacles (1
CT 125). Citing Long Beach Unified, the Commission concluded that the
requirement “to place trash receptacles at all transit stops and maintain
them is an activity ... that is a specified action going beyond federal law.”
(1 CT 126) (emphasis in original).
The Commission performed the same analysis with respect to the
commercialsite inspection obligation. Concerning the obligation to inspect
restaurants, automotive service facilities, retail gas outlets and automotive
dealerships (hereinafter, “commercial facilities”), the Commission again
reviewed the federal regulations cited by the State Board and the Regional
Board, 40 CFR § 122.26(d)(2)(iv)(B)(1) and (C)(1), which provide,
respectively, that a municipal permittee’s management program must
include a “description of a program, including inspections, to implement
and enforce an ordinance, orders or similar means to prevent illicit
discharges to the municipal separate storm sewer system” and must
16
identify, with respect to discharges from four specific categories of
industrial facilities, “priorities and procedures for inspections and establish
and implement control measures for such discharges.” Having reviewed
these regulations, the Commission found that “there is no express
requirement in federal law . . . to inspect restaurants, automotive service
facilities, retail gasoline outlets, or automotive dealerships” (1 CT 131).
The Commission found that the obligation to inspect construction
sites was a state mandate for the same reason. The Commission noted that
the federal regulation cited by the State Board and Regional Board, 40 CFR
§ 122.26(d)(2)(iv)(D), required that the municipal permittee provide a
“description of procedures for identifying priorities for inspecting sites and
enforcing control measures which consider the nature of the construction
activity, topography, and the characteristics of soils and receiving water
quality,” but did not “specify the frequency or other specifics of the
inspection program as the permit does” (1 CT 141). Citing Long Beach
Unified, the Commission ruled that the Permit’s construction site inspection
requirements “are specified actions going beyond the federal requirement. .
. As such, it is not a federal mandate for the local agency permittees to
inspect construction sites.” (/d.).
Both the superior court and the Court of Appeal declined to apply
Long Beach Unified. Instead, as noted above, the Court of Appeal
concluded that “general-purpose mandate analysis” is of limited utility in
the area of clean water law (Slip.op. at 34).
The Court of Appeal reached this conclusion because, according to
the court, the “Clean Water Act recognizes that the states function, for
practical purposes, as arms of the EPA in implementing the Clean Water
Act. Thus, when a state implements the federal maximum extent
17
practicable standard in a NPDESpermit, we cannotsay thestate is acting in
the traditional role of a state; rather, although the state provides the
infrastructure necessary to meet clean water standards, it acts on behalf of
the EPA in doing so.” (/d.).
The Court of Appeal’s conclusion thatthe state is acting on behalf of
the EPA when issuing NPDES permits was error. First, the conclusion
ignores the dual federal/state nature of the NPDES program,that the state
acts in lieu of EPA, and that the state retains the ability to adopt state
requirements more stringent than those required by the CWA. See e.g,
State of California, supra, 845 F.2d at 225 (CWA legislative history
“clearly states that the state permit programs are ‘not a delegation of
Federal authority’ but instead are state programs which ‘function . . . in lieu
of the Federal program.’”’)
Second, the Court of Appeal’s conclusion is inconsistent with this
Court’s holding in City of Burbank, that the state retains authority to
include state requirements in NPDESpermits and that when it does so the
state must comply with state law. 35 Cal.4™ at 618, 627-28. City of
Burbank involved a challenge to NPDES permits for three wastewater
treatment plants. 35 Cal.4™ at 621. The operators of the plants, inter alia,
challenged the permits on the ground that in establishing the numeric
effluent limits in the permits, the Regional Board had not considered the
cost of compliance, as required by the Porter-Cologne Act, Water Code §§
13241 and 13263. Jd. at 622. The defendants countered by claiming that
since the permit was issued under the NPDESprogram,the provisions were
not subject to these sections of the Water Code. Jd. at 623.
This Court disagreed, finding that NPDES permits can contain both
federal and state requirements. This Court held that regional boards can
18
include provisions in NPDESpermits that are more stringent than federal
law, and whenthey do, the regional board must comply with state law. Id.
at 627. This Court then held that it was necessary for the trial court to
determine whether the provisions in the NPDES permits were federal
requirements (which were not subject to the economic analysis) or more
stringent state requirements (which were). Id. at 627.'°
Because the Court of Appeal erred in concluding that the regional
board acts solely as an arm of EPA whenit issues a NPDESpermit, it erred
whenit concluded that California’s mandate jurisprudence does not apply
in this area. Instead, as the Commission recognized, such jurisprudence
applies where the Permit’s requirements exceed those set forth by federal
law or otherwise contain state requirements. The Commission, which has
exclusivejurisdiction to resolvethis issue in the first instance, Govt. Code §
17552, has the responsibility and the expertise to determine whethera state
mandate has been created.
The Court of Appeal erredin rejecting the application ofLong Beach
Unified for another reason — even where a federal requirement mayexist, if
the State directs what activities are required to comply with that
° In support of its conclusion, the Court of Appeal cited both EPA’s
oversight of the NPDES program and that EPA can veto an NPDESpermit
issued by a regional board (slip op. at 34). These factors do not go to the
dual state/federal nature of California NPDES permits, identified by this
Court in City of Burbank. EPA’s oversight is expressly limited to a state
permit program’s compliance with federal requirements. See 40 C.F.R. §
123.1(i)(2): “If an approved State [NPDES] program hasgreater scope of
coverage than required by Federal law the additional coverageis notpart of
the Federally approved program.” Similarly, EPA’s veto power is not
determinative of whether a permit contains a state mandate because EPA’s
authority in vetoing a permit is addressed to the federal aspects of the
permit. See 33 U.S.C. § 1342(d)(2).
19
requirement, a state mandate is created. Long Beach Unified also involved
the implementation of federal requirements. In Long Beach Unified, the
court was called upon to determine whether regulations issued by the State
Department of Education (“DOE”)to alleviate racial segregation in schools
constituted a state as opposed to federal mandate. The state argued that the
regulations did not constitute a state mandate because, in part, school
districts in California had a federal, constitutional duty to eliminate racial
segregation. 225 Cal.App.3d at 172. The court in Long Beach Unified
rejected that argument. The court found that, whereas public schools had a
duty to take “reasonably feasible” steps to eliminate segregation, DOE’s
regulations set forth specific activities that the school districts were
required to perform. Because DOE mandated specific activities instead of
giving the schooldistricts discretion as to how to comply with the federal
constitutional mandate, DOE’s regulations constituted a reimbursable state
mandate within the meaningofarticle XIII B, section 6. Jd. at 173.
The Commission applied this same reasoning to the Permit’s
requirements. The Commission recognized that, while federal law required
programs that would reduce pollutants in MS4 discharges to the “maximum
extent practicable,” the permit required specific activities not found in the
federal regulations, removing the Cities and County’s discretion as to how
to comply with the federal requirement. This created a state mandate. (1
CT 124-25, 131, 135-36, 141).
The Commission’s analysis was correct. Although the federal
regulations set forth certain requirements that a municipal stormwater
permit must contain,see e.g., 40 C.F.R. § 122.26(d)(2)(iv)(A)(5), municipal
dischargers are given substantial discretion with respect to the design of the
other portions of their programs. With respect to those otherportions, the
20
regulations provide that a municipality should submit a proposed
stormwater management program. The regulations address the subjects this
municipal stormwater program must address, but not the specific activities
that must be implemented. See 40 C.F.R. § 122.26(d)(2)(iv). Instead, the
specific activities and programs are left to the municipality to design.
Because the Regional Board, in the Permit, usurped the Cities’ and
County’s discretion as to how to implement their stormwater program and
mandated specific, required activities, the state imposed mandates within
the meaning of article XIII B, section 6. Long Beach Unified, 225
Cal.App.3d at 173.
The Court of Appeal’s decision thus creates great uncertainty in this
area of the law. The court’s reasoning that the Regional Board wasacting
only on behalf of EPA conflicts with this Court’s holding in City of
Burbank that an NPDES permit can contain both federal and state
requirements. The court’s holding that mandate jurisprudence, including
Long Beach Unified, is of limited utility in this area creates uncertainty as
to whether, and to what extent, any NPDES permit issued to a municipality
could contain state mandates within the meaningofarticle XIII B, section
6. It also creates substantial uncertainty with respect to cities and counties’
funding of these programs. The Court of Appeal’s decision provides no
guidanceas to whethera city or county can obtain a subvention of funds for
requirements imposed by a regional board in municipal stormwater permits.
Review should be granted to resolve these important questions.
I. REVIEW IS WARRANTED TO ADDRESS’- THE
IMPORTANT AND RECURRING ISSUES OF WHETHER A
COURT OF APPEAL CAN SUBSTITUTE ITS JUDGMENT
FOR THAT OF THE COMMISSION WHERE THE
FEDERAL REQUIREMENT IS NOT DEFINED BY
21
FEDERAL STATUTE AND TO WHAT AUTHORITY THE
COMMISSION AND THE COURTS SHOULD LOOK IN
DEFINING THAT FEDERAL REQUIREMENT
As previously noted, the CWA provides that permits for discharges
from municipal storm sewers “shall require controls to reduce the discharge
of pollutants to the maximum extent practicable... .” 33 U.S.C. §
1342(p)(3)(B)Gii). The term “maximum extent practicable” is not defined
by federal statute.'’ The issue of what authority the Commission and the
courts should look to to define a federal as opposed to state mandate within
the meaning ofarticle XIII B, section 6, where the federal requirementis
not defined by federal statute, is an important one. It arises here in the
context of the application of the CWA,but it could arise with respect to any
federal program implementedbythestate.
In addressing whether the Permit imposed a state mandate, the
Commission looked to the federal regulations and determined that none of
those regulations required municipal stormwater permittees to install trash
receptacles or to inspect commercial, industrial and construction sites, as
required by the Permit. (1 CT, 124-25, 131, and 135-36). In addition, the
Commission had beforeit:
"' MEPis also not explicitly defined by any federal regulation. There is a
reference to MEPin the regulations applicable to operators of small “Phase
IJ” municipal stormwater systems. 40 C.F.R. § 122.34 states that small
operators shall have a stormwater management program designed to reduce
the discharge of pollutants to the maximum extent practicable. In order to
meet this standard, the regulation states that the stormwater management
program must contain six minimum measures set forth in the regulation.
Notably, those minimum measures do not include installation of trash
receptacles or inspections of commercial or industrial sites. See 40 C.F.R.
§ 122.34(b).
22
(1) EPA-issued guidance documents that did not specify trash
receptacle or inspection requirements as federally mandated requirements
(See AR 3439-40 (no mention of trash receptacles in evaluating street
operation and maintenance);
(2) an EPA guidance manual that required only the inspections set
forth by EPA regulations, not the commercial, industrial and construction
inspections required by the Permit (AR 3466-67);
(3) EPA-issued municipal stormwater permits that did not include
these obligations (AR 3891-4192);
(4) letters from the former EPA administrator and head of the water
division for EPA Region IX in which they state that the state retained
responsibility for inspection for compliance with state law, including state-
issued permits (AR 3878-81);
(5) prior Regional Board permits issued to the Cities and County that
did not include the trash receptacle and inspection requirements, which
permits had been approved by EPA as meeting the CWA’s requirements
(AR 1540-41, 1552, 1782, 3842, 3847, 3850, 3865); and
(6) evidence that the Regional Board had initiated negotiations for a
contract with the County whereby the Regional Board would pay the
County to perform the inspections of industrial facilities on the Regional
Board’s behalf, which negotiations were terminated following issuance of
the Permit (AR 3885).
In contrast to the Commission, the Court of Appeal did not look to
the federal regulations or any federal authority to define what constitutes
MEP. Instead, the Court of Appeal applied a definition discussed in
another Court of Appeal decision, Building Industry Ass’n. of San Diego
County, supra, 124 Cal.App.4" 866. Yet that definition of MEP was
23
created by a regional board in another stormwater permit that was at issue
in that case. Jd. at 876 n.7, 889. The Court of Appeal applied that other
permit’s definition to the mandate issues in this case, without reference to
any federal authority. See Slip. op. at 31, 34-35.
The issue of to what authority the Commission or a court should
look in defining a federal requirement where that requirementis itself not
defined by federal statute is an ongoing issue of great importance. Here,
the Commission looked to federal authorities, specifically federal
regulations. It had before it other federal materials, including EPA
guidance documents andletters from EPA administrators. Courts in other
circumstances have looked to federal case law. For example, in Long
Beach Unified, the court looked to case law that construed the
constitutional obligation to alleviate racial desegregation. 225 Cal.App.3d
at 172-73. The Cities and Counties submit that these authorities are the
type of authorities upon which the Commission and courts should rely in
determining whether a mandate is federal as opposed to state within the
meaning ofarticle XIII B, Section 6.
The Court of Appeal, on the other hand, relied on a discussion in a
state court opinion of a definition in another state stormwater permit, a
definition that had first been articulated by a state, not federal, authority.
The Court of Appeal then substituted its own judgment for that of the
Commission. (Slip op. at 34-35.) This approach fails to accord proper
deference to the federal regulatory system in interpreting federal statutes.
The issue of to what authority the Commission or a court must look
to define a federal mandate when the federal statute does not define the
federal requirements is an issue that has importance with respect to
implementation of all federal programs. Is it proper to look to the federal
24
regulations and other federal materials, as the Commission did here? Oris
it proper to look to California court decisions that discuss interpretations
issued by state agencies that have no authority to provide authoritative
construction of federal statutes, as the Court of Appeal did? This is an
important issue of state-wide significance. Review should be granted to
resolvethis issue also.
Il. THE COURT OF APPEAL’S HOLDING THAT THE STATE
DID NOT CREATE A STATE MANDATE WHEN IT
SHIFTED TO MUNICIPALITIES THE OBLIGATION TO
INSPECT COMMERCIAL, INDUSTRIAL AND
CONSTRUCTION SITES CONFLICTS WITH HAYES 1.
COMMISSION ON STATE MANDATES AND RAISES AN
IMPORTANT QUESTION OF LAW WHICH REQUIRES
THIS COURT’S RESOLUTION
The Commission found that the obligations to inspect facilities that
hold State Board-issued general industrial and construction stormwater
permits were state mandates for an additional reason.'* The Commission
found that the federal obligation to regulate industrial stormwater pollutant
discharges was being implemented through a statewide General Industrial
Activity Stormwater Permit (“GIASP”) first issued in 1991, and the
obligation to regulate discharges from construction sites was being
implemented through a statewide General Construction Activity
Stormwater Permit (““GCASP”) first issued in 1992, both of which were
enforced by the regional boards. The Commission noted that the Permit
included a specific finding that the “[Regional Board] is the enforcement
authority in the Los Angeles Region for the two statewide general permits
A general NPDESpermit is a permit that regulates multiple dischargers
within the same category. 40 C.F.R. § 122.28.(a)(2). See also 40 C.F.R. §
122.26(c)(1) (requiring industrial and construction stormwater dischargers
either to apply for an individual permit or seek coverage under a general
permit).
25
regulating discharges from industrial facilities and construction sites” (1 CT
135).
The Commission then found that “there is nothing in the federal
statutes or regulations that would prevent the state (rather than local
agencies) from performing the inspections of industrial facilities . . . under
the state-enforced general permit” (1 CT 136), and that “[iJn fact, the state
board collects fees for the regional boards for performing inspections under
the GIASP” (/d.). The Commission made the same finding with respect to
the GCASP (1 CT 141-42). The Commission found that the state had
“freely chosen” to impose these obligations on the Cities and County and
thus created a state mandate, citing Hayes, supra, 11 Cal.App.4" at 1593-94
(1 CT 136, 142).
In contrast, the Court of Appeal found that the inspection obligations
fell within the MEP standard and therefore were not state mandates (Slip.
op. at 35). The court then further found that “shifting the federally-
mandated GIASP and GCASP inspection obligations via the Permit’s
inspections would notconstitute the shifting of a state mandate.” (Slip. op.
at 36) (emphasis in original).
The Court of Appeal’s holding is contrary to, and conflicts with,
Hayes. In Hayes, the court was called upon to determine whether the State
created a state mandate when it shifted obligations imposed by the federal
Education of the Handicapped Act, 20 U.S.C. § 1401 et seq., from the state
to school districts. 11 Cal.App.4" at 1574-75. The court first noted that
“our conclusion that the Education of the Handicapped Act is a federal
mandate with respect to the state marks the starting point rather than the
end of the consideration which will be required to resolve the . . . test
claims.” Jd. at 1592. The court then held that, even if the mandate were a
26
federal mandate with respect to the state, if the state implemented that
mandate by “freely choosing” to impose new programsor higher levels of
service on local agencies rather than to meet the federal obligation itself,
then those new programs or higher levels of service constituted state
mandates within the meaningofarticle XIII B, section 6. Jd. at 1594.
The Court of Appeal did not apply Hayes to the inspection
obligations. Instead, the Court held that the Permit’s obligations could not
constitute the shifting of a “state” mandate. The court in Hayes, however,
did not address the shifting of a state mandate. The court in Hayes
addressed the shifting of a federal mandate and held that where the state
freely chooses to shift that federal mandate onto a local agency, rather than
perform that federal mandate itself, the state creates a state mandate within
the meaningofarticle XIII B, section 6. 11 Cal.App.4" at 1593-94.
For the reasons discussed above, the Cities and County submit that
the Court of Appeal erred in finding that the inspection obligations were
federal mandates. Even if the inspection obligations are federal mandates,
however, the Court of Appeal’s decision directly conflicts with Hayes and
creates confusion as to the proper rule where the state shifts a federal
mandate from itself to local agencies. As the Commission found, even if
the inspection obligations were federal mandates under the MEP standard,
because the state was performing those mandates itself and could continue
to do so, the state created a state mandate within the meaningofarticle XIII
B, section 6, by shifting those inspection obligations from itself to the
Cities and County (1 CT 136, 141). This Court should grant review to
resolve the conflict between the holdings in Hayes and this case.
27
CONCLUSION
For the foregoing reasons, the Petition for Review should begranted.
Dated: November 25, 2013
28
Respectfully submitted,
JOHN F. KRATTLI
County Counsel
JUDITH A. FRIES
Principal Deputy County Counsel
BURHENN & GEST
HOWARD GEST
DAVID W. BURHENN
By: A222
Howard Gest
Attorneys for Appellant and Real
Party in Interest County of Los
Angeles
BURHENN & GEST
HOWARD GEST
DAVID W. BURHENN
By: SLA
Howard Gest
Attorneys for Appellants and Real
Parties in Interest Cities of
Bellflower, Carson, Commerce,
Covina, Downey and Signal Hill
CERTIFICATION OF WORD COUNT
Pursuant to Rule 8.504(d) of the California Rules of Court, the
undersigned counsel certifies that this petition for review contains 7,932
words, including footnotes, as indicated by the word count of the word
processing program used.
Dated: November25, 2013 JOHN F. KRATTLI
County Counsel
JUDITH A. FRIES
Principal Deputy County Counsel
BURHENN & GEST LLP
HOWARD GEST
DAVID W. BURHENN
Attorneys for Appellant and Real Party
in Interest County of Los Angeles
BURHENN & GEST LLP
HOWARD GEST
DAVID W. BURHENN
By: WEhe
Howard Gest
Attorneys for Appellants and Real
Parties in Interest County of Los Angeles
and Cities of Bellflower, Carson,
Commerce, Covina, Downey and Signal
Hill
30
APPENDIX
Filed 11/14/13 (unmodified opn.attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
STATE DEPARTMENT OF FINANCEetal., B237153
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. BS130730)
v.
ORDERMODIFYING OPINION
COMMISSION ON STATE MANDATES, .
[NO CHANGEINJUDGMENT]
Defendant and Respondent;
COUNTY OF LOS ANGELESetal.,
Real Parties in Interest and Appellants.
THE COURT:
It is ordered that the opinion filed herein on October 16, 2013, be modified as
follows:
On page 37,at line six of the first full paragraph, delete the word “unfettered” and
replace it with the word “wide.”
This modification has no effect on the judgment.
CERTIFIED FOR PUBLICATION.
MALLANO,P.J. ROTHSCHILD,J. JOHNSON,J.
Filed 10/16/13 (unmodified version)
CERTIFIED FORPUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
STATE DEPARTMENT OF FINANCEet al., B237153
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. BS130730)
v.
COMMISSION ON STATE MANDATES,
Defendant and Respondent;
COUNTY OF LOS ANGELESetal.,
Real Parties in Interest and Appellants.
APPEAL from ajudgmentofthe Superior Court ofLos Angeles County, Ann I. Jones,
Judge. Affirmed.
Burhenn & Gest, Howard Gest, David W. Burhenn, for Appellants and Real Parties in
Interest County ofLos Angeles, Cities ofBellflower, Carson, Commerce, Covina, Downey
and Signal Hill.
John F. Krattli, County Counsel, and Judith Fries, Principal Deputy Counsel, for
Appellant and Real Party in Interest County ofLos Angeles.
Somach Simmons & Dunn, Theresa A. Dunham, Nicholas A. Jacobs for California
Stormwater Quality Association, Santa Clara Valley Urban Runoff Pollution Prevention
Program, Riverside County Flood Control and Water Conservation District and County of
Riverside, the Alameda County Clean Water Program, and City/County Association of
Governments of San Mateo County as Amici Curiae on behalf ofRealParties in Interest and
Appellants.
Building Industry Legal Defense Foundation, Andrew R. Henderson, as Amicus
Curiae on behalf ofReal Parties in Interest and Appellants.
Kamala D.Harris, Attorney General, Douglas J. Woods, Senior Assistant Attomey
General, Peter K. Southworth, Supervising Deputy Attorney General, and Kathleen A. Lynch,
Deputy Attorney General, for Plaintiffs and Respondents State of California Department of
Finance, State Water Resources Control Board, and California Regional Water Quality
Control Board, Los Angeles Region.
No appearance for Defendant and Respondent Commission on State Mandates.
In December 2001, the California Regional Water Quality Control Board, Los Angeles
Region (Regional Board) issued a municipal stormwater sewer permit (Permit) to real parties
in interest Los Angeles County and designatedcities within the county, including the cities of
Bellflower, Carson, Commerce, Covina, Downey and Signal Hill (collectively County). The
Permit is governed by a complex state and federal statutory scheme regulating pollutant
discharge into waterways under the federal Clean Water Act and the California Porter-
Cologne Water Act. The Permit’s subventionstatus is subjectto initial determination by the
Commission on State Mandates (Commission). Real parties in interest filed a test claim
before the Commission, seeking to determine whether four requirements ofthe Permit (to
install trash receptacles at transit stops and to conductinspections of commercial, industrial,
and construction sites) constituted unfunded state mandates subject to reimbursement under
the California Constitution, article XIII B, section 6 because although the Permit was
governed by both federal law and state law, the County asserted the Permit contained
additional state requirements not found in the governing federal statutes and regulations. The
Commission agreed and foundthat the requirements constituted state mandates,although it
concluded subvention was required only for the trash receptacles because the County had the
ability to levy fees to pay for the inspections.
The Department of Finance filed a petition for writ ofmandatein thetrial court,
seeking to overturn the Commission’sruling, contending that the requirements were solely
federal mandates because they implementedthe directive ofthe federal statutes and
regulations and thus were not subject to state subvention. Thetrial court agreed and found
that the Commission erred in finding the Permit requirements were state mandates becauseit
did not apply the applicable federal “maximum extent practicable” standard, and issued a writ
ofmandate ordering the Commission to vacate its decision.
On appeal, the dispute centers on whether the federal standard requiring the reduction
ofpollutants to the maximum extent practicable encompassed the specific four requirements
ofthe Permit, given that the federal regulations at issue did not expressly spell out such
requirements. The amici parties California Stormwater Quality Associationet al. (collectively
CSQA)join in the County’s arguments that the trial court erred in finding the maximum
extent practicable standard controlled. The amicus party Building Association Legal Defense
Foundation (Building Association) asserts that the issue is one ofpreemption, and thetrial
court erred in finding that the federal regulations governed the court’s mandate analysis. We
agree with thetrial court’s conclusion that the Commission failed to apply the controlling
maximum extent practicable standard, that the Permit’s mandates implement the maximum
extent practicable objective, and thus are federal mandates. We affirm the judgment.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Regulatory Structure
The Permit was issuedas a “‘National Pollutant Discharge Elimination System”
(NPDES)permit pursuant to the Clean Water Act, Title 33 United States Code section 1342.
The Clean Water Act requires operators ofmunicipal separate storm sewer systems to obtain
NPDESpermits that contain controls to “reduce the discharge of pollutants to the maximum
extent practicable.” (33 U.S.C. § 1342(p)(3)(B)(iii).) The Commission did not consider this
standardin evaluating the Permit’s requirements, instead looking solely to whether the
requirements were expressly set forth in the implementing federal regulation at 40 Code of
Federal Regulations, part 122.26(d)(2)(iv)(A)+(D)(a copy of appendix A is attached).
1. Federal Framework
In 1972, Congress passed the Clean Water Act. (33 U.S.C. § 1251 et seg.) The Clean
Water Act’s national goal was to eliminate dischargeofpollutants into navigable waters ofthe
United States by 1985. (PUD No. | ofJefferson County v. Washington Dept. ofEcology
(1994) 511 U.S. 700, 704 [114 S.Ct. 1900, 128 L.Ed.2d 716]; City ofBurbank v. State Water
Resources Control Board(2005) 35 Cal.4th 613, 619-620 (City ofBurbank).) To achieve
this goal, the Clean Water Act “established restrictions on the ‘quantities, rates, and
concentrations of chemical, physical, biological, and other constituents” that could be
discharged into the nation’s waterways. “[T]hese effluent limitations permit the discharge of
pollutants only when the water has beensatisfactorily treated to conform to federal water
quality standards. (33 U.S.C. §§ 1311 1362(11).)” (City ofBurbank,at p. 620.)
“The Clean Water Act employs the basic strategy of prohibiting emissions from ‘point
sources,’ [1] unless the [emitter] obtains ...an NPDES permit.” (Building Industry Assn. of
San Diego County v. State Water Resources Control Bd. (2004) 124 Cal.App.4th 866, 872,
fns. omitted (Building Industry).) NPDESpermits are required for “a discharge from a
municipal separate storm sewer system serving a population of250,000 or more.” (33 U.S.C.
§ 1342(p)(2)(C).) NPDESpermits have “‘five components: technology-basedlimitations,
water-quality based limitations, monitoring and reporting requirements, standard conditions,
and special conditions.” (WaterKeepers Northern California v. State Water Resources
Control Bd. (2002) 102 Cal.App.4th 1448, 1452.)
Special rules apply to storm sewers. In 1987, Congress amended the Clean Water Act
to require operators of “municipal separate storm sewer systems” (MS4)? to control or reduce
1 A “point source” is “any discernable, confined and discrete conveyance” and
includes “anypipe, ditch, channel . . . from whichpollutants . . . may be discharged.” (33
ULS.C. § 1362(14).)
2 MS4’sfall underthe definition of “point source.” (33 U.S.C. § 1362(14).)
4
the discharge ofpollutants to the “maximum extentpracticable” (MEP).3 (33 U.S.C.
§ 1342(p)(3)(B)iii).) Congress“clarified that the EPA [Environmental Protection Agency
(EPA)] hadthe authority to fashion NPDESpermit requirements to meet water quality
standards withoutspecific numerical effluentlimits and instead to impose ‘controls to reduce
the discharge ofpollutants to the maximum extentpracticable ... .’” (Building Industry,
supra, 124 Cal.App.4th at p. 874; 33 U.S.C. § 1342(p)(3)(B)(ii).) Stormwater dischargeis a
significant source of waterpollution, and contains suspended metals, sediments,algae-
promoting nutrients, trash, used motoroil, raw sewage, pesticides, and other toxic
contaminants. Sources ofpolluted stormwater discharge are “urban development, industrial
facilities, constructionsites, andillicit discharges and connections to storm sewer systems.”
(Environmental Defense Center, Inc. v. U.S.E.P.A. (9th Cir. 2003) 344 F.3d 832, 840.) Unlike
a sanitary sewer system, which transports sewage for treatment at a wastewaterfacility, MS4’s
convey only stormwater. (Natural Resources Defense Council, Inc. v. County ofLos Angeles
(2013) 725 F.3d 1194,1197,fn. 2.) Asa result, the flexible maximum extentpracticable
standard is designed to permit MS4dischargers to comply with such requirementon a permit-
by-permit basis.
The EPA promulgated regulations to provide guidance to stormwater system
permittees concerning requirements for MS4 permits. The regulations contain certain
requirements, such as requiring MS4 permittees to include a program to monitor discharge
from municipal landfills, hazardous waste treatmentplants, but otherwise allow permittees to
develop their own programs to meet the maximum extent practicable standard. (See 40
3 Title 33 United States Code section 1342(p)(3)(B)(iii) requires operators of
municipal storm sewer systems permits to “require controls to reduce the discharge of
pollutants to the maximum extentpracticable, including managementpractices, control
techniques and system, design and engineering methods, and such otherprovisions as the
Administrator or the State determines appropriate for the control of such pollutants.” The
Clean Water Act doesnot define the “maximum extentpracticable” standard. (City of
Arcadia v. State Water Resources Control Bd. (2006) 135 Cal-App.4th 1392, 1427, fn. 13.)
Indeed, the EPA has expressly declinedto directly define the standard. (40 C.F.R. § 122.2; 64
Fed.Reg. 68722, 68754 (Dec. 8, 1999).)
C.F.R. § 122.26(d)(2\iv)(A}{C).) Before an NPDESpermitis issued, the federal orstate
regulatory agency mustfollow an extensive administrative hearing procedure. (See, e.g., 40
C.F.R. §§ 124.3, 124.6, 124.8, 124.10.)
2. State Framework
With respect to concurrent state regulation, “[t]he Clean Water Act anticipates a
partnership between the States and the Federal Government, animated by a shared objective:
‘to restore and maintain the chemical, physical, and biological integrity ofthe Nation’s
waters.’ [Citation.]” (Arkansas v. Oklahoma (1992) 503 U.S. 91, 101 [112 S.Ct. 1046, 117
L.Ed.2d 239].) The Clean Water Act permits states to adopt more stringent standards than
those under the Clean Water Actitself. (33 U.S.C. § 1370.) “Nothingin this part precludes a
State from: (1) Adopting or enforcing requirements which are morestringent or more
extensive than those required underthis part; (2) Operating a program with a greater scope of
coverage than that required underthis part.” (40 C.F.R. § 123.17.)
Under California law, the Porter-Cologne Water Quality Control Act (Porter-Cologne
Act), enacted in 1969, predates the Clean Water Act and establishes a statewide program for
water quality control. (Wat. Code, § 13000 et seq.) Nine regional boards, overseen by the
State Water Resources Control Board (State Board), administer the state program in their _
respective regions. (Wat. Code, §§ 13140, 13200 et seq., 13240, 13301.) After enactment of
the Clean Water Act, the Legislature “amended the Porter-Cologne Actto require the State
Board and regional boards to issue discharge permits that ensure compliance with the Clean
Water Act. (See Wat. Code, § 13370 et seq.)” (WaterKeepers Northern California, supra,
102 Cal.App.4th at p. 1452.) The Clean Water Act thus permits NPDESpermits to be issued
either by the EPA or an EPA-approvedstate. (33 U.S.C. § 1342(a)(1), (b); Wat. Code,
§§ 13374, 13377.) The EPA has issued guidance documents discussing best management
practices (BMP) to be included in MS4 permits. Under the Clean Water Act, the proper scope
ofthe controls in an NPDESpermit depends on the applicable state water quality standards
for the affected water bodies. (See Communitiesfor a Better Environment v. State Water
Resources Control Bd. (2003) 109 Cal.App.4th 1089, 1092.) Thus, the Clean Water Act
establishes a partnership between the EPA andthe various states through the NPDESpermit
system for addressing pollution problems. The Clean Water Act envisions the use ofboth
state and federal law to remedy pollution problems. (/nternational Paper Co. v. Ouellette
(1986) 479 US. 481, 490 [107 S.Ct. 805, 93 L.Ed.2d 883].)
Regional boards are authorized to issue NPDESpermits for five-year periods. (33
USS.C. § 1342(b)(1)(B); Wat. Code, § 13378; City ofRancho Cucamonga v. Regional Water
Quality Control Bd. (2006) 135 Cal.App.4th 1377, 1381.) Thus, in California, wastewater
discharge requirements established by the regional boards also serve as the NPDESpermits
required by federal law. (Wat. Code, § 13374; City ofBurbank, supra, 35 Cal.4th at p. 621;
Building Industry, supra, 124 Cal.App.4th at p. 875.) Thestate issuing a permit must insure it
complies with federal requirements and provide for continued monitoring and inspection. (33
U.S.C. §§ 1342(b)(1), (b)(2), 1311, 1312, 1316, 1317.) When a permit is renewed, modified,
or reissued, it must beat least as stringent as the prior permit. (33 U.S.C. § 1342(0).)
The EPAretains veto powerovera state-issued NPDES permit if the EPA does not
find compliance with any applicable federal requirements. (33 U.S.C. § 1342(d); 40 C.F.R.
§ 123.44.) Further, the EPA may withdraw its approval of a state NPDES program if it
determinesthe state is not administering the program in compliance with the federal _ |
requirement. (33 U.S.C. § 1342(c)(3); 40 C.F.R. §§ 123.63, 123.64.) Ifa state repeatedly
issues permits that are vetoed by the EPA, the EPA mayfindthis constitutes grounds for
withdrawal ofthe state’s program approval. (40 C.F.R. § 123.63(a)(2)(ii).)
B. The Commission on State Mandates
The California Constitution, article XTII B, section 6(a), provides, in relevant part:
“Wheneverthe Legislature or any state agency mandates a new program orhigherlevel of
service on any local government, the state shall provide a subvention!4] of funds to reimburse
that local governmentfor the costs of such program orincreasedlevelof service... .” (See
4 «<] BY U.S. MAIL:I sealed and placed such envelope for collection and mailing to be
deposited on the same day at Los Angeles, California. The envelopes were mailed with postage
thereon fully prepaid. I am readily familiar with Burhenn & Gest LLP’spractice of collection and
processing corresponding for mailing. Underthis practice, documents are deposited with the U.S.
Postal Service on the samedaythat is stated in the proofof service, with postage fully prepaid at
Los Angeles, California in the ordinary course of business.
[_] BY FEDERAL EXPRESS: | am familiar with the firm’s practice of collecting and
processing correspondencefordelivery via Federal Express. Underthatpractice, it would be picked
up by Federal Express on that same day at Los Angeles, California and delivered to the parties as
listed on this Proof of Service the following business morning.
[_] BY FACSIMILE: I causedthe above referenced documentto be transmittedvia facsimile
and to the parties as listed on this Proof of Service.
[_] BY PERSONALSERVICE: caused such envelope to be delivered by messenger to the
office or homeofthe addressee(s).
DX] STATE:I declare under penalty of perjury underthe lawsofthe state of California that the
aboveis true and correct.
|_] FEDERAL:I declare that I am employed in the office of a memberofthe bar ofthis court at
whosedirection the service was made.
Executed on November25, 2013 at Los Angeles, California.
AEA
Howard Gest
SERVICE LIST
_ State ofCalifornia Department ofFinancev. County ofLos Angeles
Case No, B237153/BS130730
Kamala Harris
Attorney Generalof the State of California
Douglas J. Woods
Acting Senior Asst. Attorney General
Kathleen A. Lynch
Deputy Attorneys General
1300 | Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: (916) 445-7480
Facsimile: (916) 324-8835
Attorneys for Petitioners
Camille Shelton
Chief Legal Counsel
Eric D. Feller
Senior Staff Counsel
Commission on State Mandates
980 Ninth Street, Suite 300
Sacramento, CA 95814
Telephone: (916) 323-3562
Facsimile: (916) 445-0278
Attorneys for Respondent
Commission on State Mandates
Ginetta Giovinco
Richards, Watson & Gershon
355 S. Grand Ave., 40" Floor
Los Angeles, CA 90071
Telephone: (213) 253-0281
Facsimile: (213) 626-0078
Attorneys forCities of Artesia, Beverly
Hills, Norwalk, Rancho Palos Verdes and
Westlake Village
Email: ggiovinco@rwglaw.com
Christi Hogin
Jenkins & Hogin
Manhattan Towers
1230 Rosecrans Avenue, Suite 110
Manhattan Beach, CA 90266
Telephone: (310) 643-8448
Facsimile: (310) 643-8441
Attorney for City of Monterey Park
Nicholas George Rodriguez
City Attorney
City of Vernon
4305 Santa Fe Avenue
Vernon, CA 90058
Telephone: (323) 583-8811
Facsimile: (323) 826-1438
Attorney for City of Vernon
Clerk, Court of Appeal
Second Appellate District
Ronald Reagan State Building
300 S. Spring Street,
2™ Floor North Tower
Los Angeles, CA 90013
Clerk
Los Angeles County Superior Court
111 N. Hill Street
Department 86
Los Angeles, CA 90012
