Opinion
No. G058539.
02-19-2021
CITY OF DUARTE, Plaintiff and Respondent, v. STATE WATER RESOURCES CONTROL BOARD, et al., Defendants and Appellants.
[Modification of opinion (60 Cal.App.5th 258; ___ Cal.Rptr.3d ___), upon denial of rehearing.]
THE COURT.—IT IS ORDERED that the opinion filed January 28, 2021, be modified as follows:
(1) On page 2, in the second full paragraph, at the end of the second sentence [60 Cal.App.5th 264, advance report, 1st full par., line 7], after the word "upheld," add:
as a matter of law.
(2) On page 12, in the paragraph beginning "Assuming," [60 Cal.App.5th p. 271, advance report, last par., last word carrying over to 1st partial par. p. 272] delete the last sentence and replace it with the following:
We reverse the judgment because, as a matter of law, the Water Control Boards sufficiently considered the necessary factors under Water Code section 13241.
(3) On page 14, the paragraph that carries over from page 13, line 5 [60 Cal.App.5th 273, advance report, 1st full par., line 9], following the closed parenthetical, add the following:
(We note that both Arcadia I and Arcadia II followed and applied City of Burbank v. State Water Resources Control Bd.)
(4) On page 15, in the first paragraph under subheading 3. [60 Cal.App.5th 274, advance report, 1st full par. under heading 3., line 2], delete the first sentence and replace it with the following:
We conclude that the Water Control Boards sufficiently complied with their obligations to consider the Water Code section 13241 factors as a matter of law.
[60 Cal.App.5th 816b]
(5) On page 17, in the final paragraph that begins "Duarte contends" [60 Cal.App.5th 276, advance report, 1st full par., lines 1-3] delete the first sentence and replace it with the following:
As noted ante, to comply with Water Code section 13241, the Regional Board must consider the costs of compliance in setting effluent limitations. (City of Burbank v. State Water Resources Control Bd., supra, 35 Cal.4th at p. 625.) An issue in this case is whether the Water Control Boards sufficiently analyzed cost considerations. Duarte contends the Water Control Boards were required to do a more detailed analysis for each and every Permittee.
(6) On page 18, at the end of the paragraph that carries over from page 17 [60 Cal.App.5th 276, advance report, following 1st full par.], add the following new paragraph:
In a petition for rehearing, Duarte contends our holding cannot be reconciled with the California Supreme Court's decision in City of Burbank v. State Water Resources Control Bd., supra, 35 Cal.4th 613. But Duarte's characterization of our holding is demonstrably wrong. To repeat, this opinion concludes that the Water Control Boards complied with their obligations to consider the Water Code section 13241 factors, including compliance costs. Indeed, we have highlighted 11 of the Water Control Boards' findings regarding their analyses of economic considerations, including cost considerations.
These modifications do not effect a change in judgment. The petition for rehearing is denied.