On October 5, 2021, the State Water Resources Control Board (“State Board”) adopted statewide requirements for dischargers, known as the “Toxicity Provisions,” which insert a uniform set of effluent limitations into each region’s basin plan.
As background, the Toxicity Provisions have been in development for almost 20 years. As adopted, they require all nine regional boards to use standardized calculations to determine effluent limitations for beneficial uses. The effort has been the topic of repeated litigation. Of note, a recent Sacramento County court opinion held that the State Board lacked the authority to establish a statewide water quality control plan but did not address whether the State Board could adopt a statewide “policy” for water quality. Accordingly, the State Board characterizes the Toxicity Provisions as a state policy that supersedes inconsistent provisions in any region’s basin plan.
In effect, the new requirements could mean changes for NPDES permit holders. NPDES permits typically contain effluent limitations that protect the beneficial uses identified in the applicable basin plan. Such limitations may restrict the amount of discharge, discharge rates, or pollutant loads. Generally, each regional board decides these effluent limitations for beneficial uses under that board’s jurisdiction. Under the new Toxicity Provisions, however, the regional boards would be required to use a standardized calculation, which in turn would be incorporated into the NPDES permits and impose new restrictions or requirements on permitted dischargers.
Given the controversy surrounding these provisions, there is at least a reasonable probability that the new requirements will be challenged in court. Until that time, there is uncertainty on how these requirements will affect individual permittees.
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Russell Frink is an Associate at Harrison, Temblador, Hungerford & Guernsey LLP in Sacramento, California.
© 2021 – Harrison, Temblador, Hungerford & Guernsey LLP. All rights reserved. The information in this article has been prepared by Harrison, Temblador, Hungerford & Guernsey LLP for informational purposes only and does not constitute legal advice.