ALESHIRE & WYNDER, LLP ATTORNEYS AT LAW www. awa rro rn eys. com RESPOND TO ORANGE COUNTY OFFICE Email: wmiliband@awattorneys.com Direct Dial: (949) 250-5416 Orange County 18881 Von Karman Ave., Suite 400 Irvine, CA 92612 P 949.223.1170 F 949.223.1180 Los Angeles South Bav Centte, South Tower 1515 W t I 90th St., Suite 565. Gardena, CA 90248 P 310.527.6660 F 310.532.7395 Sacramento 980 9th St., 16th Floor Sacramento, CA 95814 P 916.449-9690 F 916.449.9689 VIA OVERNIGHT MAIL Chief Justice Tani Cantil Sakauye Associate Justices Kennard, Baxter, Werdegar, Chin, Moreno & Corrigan 350 McAllister Street San Francisco, CA 94102-4797 Re: City of Arcadia, et al. v. State Water Resources Control Board, et al. Fourth Appellate District, Division Three, Case No. G041545 Amicus Curiae Letter In Support Of Petition For Review Dear Honorable Justices: In support of the pending Petition for Review in the matter of City of Arcadia, et al. v. State Water Resources Control Board, et al., Fourth Appellate District, Division Three, Case No. 0041545, this letter is submitted by the League of California Cities, California Contract Cities Association and California State Association of Counties, all of which were amicus curiae at the appellate level in this case (collectivel y, "Amicus Curiae"). Pursuant to California Rule of Court 8.SOO(g), Amicus Curiae have a significant interest in this matter. The League of California Cities' ("League") is an association of 474 California cities dedicated to protecting and restoring local control to provide for the public health, safety, and welfare of their residents, and to enhance the quality of life for all Californians. The League is advised by its Legal Advocacy Committee, which is comprised of 24 city attorneys from all regions of the State. The Committee monitors litigation of concern to municipalities, and identifies those cases that are of statewide significance. The Committee has identified this case as being of such significance. Likewise, the California Contract Cities Association ("CCCA") is a non-profit corporation representing 72 cities statewide that contract for municipal services. The Association is counseled by its Executive Board and Legal Committee. The Legal Committee monitors and reviews legal issues of concern to its contract city members. The Executive Board and Legal Committee have identified this case as one of concern and significance to CCCA's contract cities. 01 002/0027/92640.1
Chief Justice Tani Cantil-Sakauye Associate Justices Page 2 Similarly, California State Association of Counties ("CSAC") is a non-profit corporation with membership consisting of the 58 California counties. CSAC sponsors a Litigation Coordination Program, which is administered by the County Counsel's Association of California and is overseen by the Association's Litigation Overview Committee, comprised of county counsels throughout the state. The Litigation Overview Committee monitors litigation of concern to counties statewide and has determined that this case is a matter affecting all counties. Together, Amicus Curiae, essentially representing interests of all cities and counties throughout the State, have a substantial interest in the outcome of this important case. Accordingly, Amicus Curiae support Plaintiffs/Cross-Appellants City of Arcadia, et al. ("Plaintiffs") and Plaintiffs' Petition for Review ("Petition"), for all the reasons stated by Plaintiffs as well as those reasons explained by the California Association of Sanitation Agencies in its letter to the Court dated February 2, 20 11 in support of Plaintiffs' Petition. The importance of the underlying issues in this case cannot be overstated, namely, the need for the State Water Resources Control Board and Regional Water Quality Control Boards (collectively, the "Boards") to fully and completely comply during "Triennial Reviews" with the provisions of California's Porter-Cologne Act (California Water Code Sections ("Sections") 13000 and 13241), particularly with regard to Stormwater. Amicus Curiae are very concerned for its members with the Boards' documented practices of not implementing each statutorily-required factor enumerated in Sections 13000 and 13241 in the Triennial Reviews conducted by the Boards throughout the State relating to Storm water. Inherently, Stormwater is a special type of water discharge. In a practical sense, city and county storm drains capture runoff from all types of uses, including "non-point sources" like open spaces, adjacent national forests and military installations. These drainage systems comingle into other jurisdiction's channels, making it difficult to identify who or what public or private entity is responsible for various discharges. There is no way to measure flows and the nature and water quality of the discharge. Thus, Storm water is almost a "hybrid" between nonpoint and point discharges, further warranting that it be treated differently - literally and by the Boards - than other types of discharges. Failure to incorporate such analysis into these reviews gives way to Water Quality Standards ("Standards") that are not supported by evidence and appropriate analysis, yet impose significant compliance requirements on cities and counties, and ultimately the public. 0 I 00210027/92640.1
Chief Justice Tani Cantil-Sakauye Associate Justices Page 3 For example, a proper analysis of factors in Sections 13000 and 13241, which has not been done by the Boards, might lead to an analysis of whether the Standards as applied to Stormwater need to include "recreational" as a beneficial use, particularly in concrete-lined channels and other storm drain systems utilized to convey Stormwater, and thus whether concrete-lined flood control channels should be designated as "swimmable" in the Basin Plan understanding the "environmental characteristics" of such concrete-lined flood control channels, "including the quality of the water available thereto, " i. e., Stormwater. (Water Code 13241(b).) This type of analysis, as required by Sections 13000 and 13241, would thus help determine whether the necessary improvements in water quality to achieve these uses "could reasonably be achieved. " (Water Code 13241(c); also see 13000.) Although the Porter-Cologne Act, through Sections 13000 and 13241, requires the Boards to "comply with all requirements, '' the Boards fail to do so in developing Standards for application to Stormwater. By its decision here, the Court can help direct the Boards to make sure the "Sections 13000 and 13241" analysis is fully performed for developing appropriate Standards relating to Storm water. For all the foregoing reasons, the League of California Cities, California Contract Cities Association and California State Association of Counties respectfully requests that the Court grant Plaintiffs' Petition for Review. Thank you for consideration of this request. Very truly yours, ALESHIRE & WYNDER, LLP Wesley A. Miliband cc: Service List California League of California Cities California Contract Cities Association California State Association of Counties 01002/0027/92640.1
DECLARATION OF SERVICE City of Arcadia et al. v. State Water Resources Control Board, e t al. Fourth Appellate District, Division Three, Case No. G041545 I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is Aleshire & Wynder, LLP, 18881 Von Karman A venue, Suite 1700, Irvine, CA 92612. Amicus Curiae letter in Support of Petition For Review in the matter of Citv o( Arcadia. et al. v. State Water Resources Control Board, et al. submitted by the League of California Cities; California Contract Cities Association and California State Association of Counties BY MAIL: by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Irvine, California addressed as set forth below: California Court of Appeal 4 th District, Division 3 601 w: Santa Ana Boulevard Santa Ana, CA 92701 Orange County Superior Court Clerk of the Court(Dept. CX-104) c/o Hon. Thierry Patrick Colaw 751 West Santa Ana Blvd. Santa Ana, CA 92701 David S. Beckman Michelle S. Mehta Noah J. Garrison Natural Resources Defense Council, Inc. 1314 Second Street Santa Monica, CA 90401 Richard Montevideo Peter Howell RUTAN & TUCKER, LLP 611 Anton Blvd., 14 th Floor Costa Mesa, CA 92626-1950 Jenifer F. Novak Michael W. Hughes Deputy Attorney General 300 So. Springs Street, Suite 1702 Los Angeles, CA 90013 Andrea Sheridan Ordin, County Counsel Judith A. Fries Laurie E. Dods Kenneth Hahn Hall of Administration 500 West Temple Street, Room 653 Los Angeles, CA 90012 Melissa A. Thorne DOWNEY BRAND, LLP 621 Capitol Mall, 18 th Floor Sacramento, CA 95814 Howard Gest David W. Burhenn BURHENN & GEST, LLP 624 South Grand Avenue, Suite 2200 Los Angeles, CA 90017 Supreme Court of California Office of the Clerk, First Floor 350 McAllister Street San Francisco, CA 94102 I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal 01002/0027/93573. I
Service on that same day with postage thereon fully prepaid in the ordinary course of busmess. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter da.te is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on March 4, 2011, at Irvine, California. 0 I 002/0027/93573.1