County of Los Angeles v. California State Water Resources Control Bd.

Full title: COUNTY OF LOS ANGELES et al., Plaintiffs and Appellants, v. CALIFORNIA…

Court: Court of Appeal of California, Second District

Date published: Nov 6, 2006

143 Cal.App.4th 985 (Cal. Ct. App. 2006)

50 Cal. Rptr. 3d 619

Opinion

No. B184034.

October 5, 2006. As Modified on Denial of Rehearing November 6, 2006 [CERTIFIED FOR PARTIAL PUBLICATION^_]

_ Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of Part IV (G)-(L).

Appeal from the Superior Court of Los Angeles County, No. BS080792, Victoria G. Chaney, Judge.

Raymond G. Former, Jr., County Counsel, Judith A. Fries, Principal Deputy County Counsel; Burhenn Gest, Howard Gest and David W. Burhenn for Plaintiffs and Appellants County of Los Angeles and Los Angeles County Flood Control District.

Rutan Tucker, Richard Montevideo and Peter Howell for Plaintiffs and Appellants Cities of Arcadia et al.

Burke, Williams Sorensen, Leland C. Dolley, Rufus C. Young and Amy E. Morgan for Plaintiffs and Appellants City of Industry, City of Santa Clarita and City of Torrance.

Richards, Watson Gershon, Lisa Bond, Matthew E. Cohen, Mitchell E. Abbott and John J. Harris for Plaintiffs and Appellants Cities of Monrovia, Norwalk, Rancho Palos Verdes, Artesia, Beverly Hills, Carson, La Mirada and Westlake Village.

Bill Lockyer, Attorney General, Tom Greene, Chief Assistant Attorney General, Mary E. Hackenbracht, Assistant Attorney General, Richard Magasin, Helen G. Arens and Jennifer Faye Novak, Deputy Attorneys General, for Defendants and Respondents California Regional Water Quality Control Board, Los Angeles Region and State Water Resources Control Board.

David Saul Beckman, Anjali I. Jaiswal and Michelle S. Mehta for Defendants and Respondents Natural Resources Defense Council, Santa Monica Baykeeper and Heal the Bay.

OPINION

TURNER, P. J.

I. INTRODUCTION

Plaintiffs, 33 cities,¹ the County of Los Angeles (the county), the Los Angeles County Flood Control District (the flood control district), the Building Industry Legal Defense Fund, and the Construction Industry Coalition on Water Quality, appeal from a March 24, 2005 judgment in favor of defendants, California Regional Water Quality Control Board, Los Angeles Region (the regional board) and the State Water Resources Control Board (the state board) and interveners, Natural Resources Defense Council, Inc., Santa Monica Baykeeper, and Heal the Bay. Plaintiffs challenge the legality of the regional board's issuance of order No. 01-182 adopting the National Pollutant Discharge Elimination System permit No. CAS004001 (the permit) which is entitled, "Municipal Storm Water And Urban Runoff Discharges Within The County Of Los Angeles, And The Incorporated Cities Therein, Except The City Of Long Beach." The December 13, 2001 permit was issued to the county, the flood control district, and 84 incorporated cities in Los Angeles County. We affirm the judgment in its entirety.

1 The following cities have appealed: Arcadia, Artesia, Bellflower, Beverly Hills, Carson, Cerritos, Claremont, Commerce, Covina, Diamond Bar, Downey, Gardena, Hawaiian Gardens, Industry, Irwindale, La Mirada, Lawndale, Monrovia, Norwalk, Paramount, Pico Rivera, Rancho Palos Verdes, Rosemead, Santa Clarita, Santa Fe Springs, Signal Hill, South Pasadena, Torrance, Vernon, Walnut, West Covina, Westlake Village, and Whittier.

II. THE PERMIT A. Overview

The permit was issued pursuant to the obligations imposed by the Clean Water Act which will be discussed in greater detail later in this opinion. The Clean Water Act of 1977 ( 33 U.S.C. § 1251 et seq.) was originally entitled the Federal Water Pollution Control Act. ( 62 Stats. 1115; 1948 U.S. Code Cong. Admin. News at pp. 2215-2220.) For purposes of clarity and consistency, the federal applicable water pollution statutes will collectively be referred to as the Clean Water Act. The 72-page permit is divided into six parts. There is an overview and findings followed by a statement of discharge prohibitions; a listing of receiving water limitations; the Storm Water Quality Management Program; an explanation of special provisions; a set of definitions; and a list of what are characterized as standard provisions. The county, the flood control district, and the 84 cities are designated in the permit as the permittees. The findings and permit are as follows.

B. Findings

The permit found that the county, the flood control district, and the 84 cities discharge and contribute to the release of pollutants from "municipal separate storm sewer systems" (storm drain systems). These discharges were the subject of permits issued by the regional board in 1990 and 1996. The 1996 order served as the National Pollutant Discharge Elimination System permit for the discharge of municipal storm water.

The regional board found that storm drain systems in the county discharged cyanide, indicator bacteria, total dissolved solids, total suspended solids, turbidity, nutrients, total aluminum, dissolved cadmium, copper, lead, total mercury, nickel, zinc, bis(2-ethylhexyl)phthalate, polycyclic aromatic hydrocarbons, diazinon, and chlorpyrifos. According to the regional board, there were certain pollutants present in urban runoff which resulted from sources over which the permittees had no control. Among the runoff sources over which the permittees have no control are polycyclic aromatic hydrocarbons which are the products of internal combustion engines or copper from brake pad wear. Various reports prepared by the regional board, the Los Angeles County Grand Jury, and academic institutions indicated pollutants are threatening to or actually impairing the beneficial uses of water bodies in the Los Angeles region.

The regional board concluded that urbanization increased the velocity, volume, and duration of water runoff; increased erosion; and adversely affected natural drainages. The regional board found: "The [county] has identified as the seven highest priority industrial and commercial critical source types, (i) wholesale trade (scrap recycling, auto dismantling); (ii) automotive repair/parking; (iii) fabricated metal products; (iv) motor freight; (v) chemical and allied products; (vi) automotive dealers/gas stations; [and] (vii) primary metal products." Also, the regional board concluded, "auto repair facilities" contribute "significant concentrations of heavy metals" to storm waters. Moreover, paved surfaces such as those outside fast food establishments or parking lots "are potential sources of pollutants" in storm water runoff. Further, storm water runoff from retail gas establishments "have concentrations" of heavy metals and hydrocarbons.

The regional board further made findings concerning the background of the permit and its coverage area. The essential components of a Storm Water Management Program are: adequate legal authority; fiscal resources; the actual storm water quality management program itself; and a monitoring program. A storm water quality management program consists of: a public information and participation program; an industrial/commercial facilities program: a development planning program; a development construction program; a public agency activities program; and an illicit connection and illicit discharges elimination program. The permittees filed a report of waste discharge dated January 31, 2001, which contained a proposed storm water quality management program.

C. Prohibited and Allowable Discharges

In the prohibited discharges portion of the permit, the county and the cities were required to "effectively prohibit non-storm water discharges" into their storm sewer systems. This prohibition contains the following exceptions: where the discharge is covered by a national pollutant discharge elimination permit for non-storm-water emission; natural springs and rising ground water; flows from riparian habitats or wetlands; stream diversions pursuant to a permit issued by the regional board; "uncontaminated ground water infiltrations" as defined by 40 Code of Federal Regulations part 35.2005(b)(20) (1990); and waters from emergency fire-fighting flows. Another category of permissible discharges were flows incidental to urban activities consisting of: reclaimed and potable landscape irrigation runoff; potable drinking water discharges which comply with the American Water Works Association guidelines for dechlorination and "suspended solids reduction practices"; drains for foundations, footings, and crawl spaces; air conditioning condensate; "dechlorinated/debrominated" swimming pool discharges; dewatering of lakes and decorative fountains; noncommercial car washing by residents or non-profit organizations; and sidewalk rinsing.

The regional board's executive officer was granted authority to add or remove categories of non-storm-water discharges. If one of the foregoing categories was determined to be "a source of pollutants" by the regional board's executive officer, the discharge was to be no longer exempt. The executive officer retained the authority to impose conditions on the city or county to ensure that the discharge was "not a source of pollutants." Also, the executive director was given the authority to impose additional "prohibitions on non-storm water discharges" after considering either of two factors. The first factor the regional board's executive officer could consider is anti-degradation policies. The second factor the regional board's executive officer could consider is the total maximum load an impaired water body can receive and still meet applicable water quality standards and protect beneficial uses. ( 33 U.S.C. § 1313(d)(1).)

D. Receiving Water Limitations

Receiving waters are defined thusly, "`Receiving waters' means all surface water bodies. . . ." Discharges from storm sewer systems that "cause or contribute" to violations of "Water Quality Standards" objectives in receiving waters as specified in state and federal water quality plans were prohibited. Storm or non-storm-water discharges from storm sewer systems which constitute a nuisance were also prohibited. The term nuisance is defined, "`Nuisance' means anything that meets all of the following requirements: (1) is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property; (2) affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal; (3) occurs during, or as a result of, the treatment or disposal of wastes." In order to comply with the receiving water limitations, the permittees were required to implement control measures in accordance with the permit. If the Storm Water Quality Management Program did not assure compliance with the receiving water requirements, the permittee was required to immediately notify the regional board; submit a receiving water limitations compliance report that described the best management practices that were currently being used and proposed changes to them; submit an implementation schedule as part of the receiving water limitations compliance report; and, after approval by the regional board, promptly implement the new best management practices. If the permittee makes the foregoing changes, even if there were further receiving water discharges beyond those addressed in the water limitations compliance report, additional changes to the best management practices need not be made unless directed to do so by the regional board.

E. Storm Water Quality Management Program

The permittees were to implement the Storm Water Quality Management Program which meets the standards of 40 Code of Federal Regulations, part 122.26(d)(2) (2000), and reduce the pollutants in storm waters to the maximum extent possible with the use of best management practices. Further, the permittees were required to revise the Storm Water Quality Management Program to comply with specified total daily maximum load allocations. If a permittee modified the countywide Storm Water Quality Management Program, it was required to implement a local management program. Each permittee was required by November 1, 2002, to adopt a storm water and urban runoff ordinance. By December 2, 2002, each permittee was required to certify that it had the requisite legal authority to comply with the permit through adoption of ordinances or municipal code modifications.

The county was designated as the "Principal Permittee" and was given coordination responsibilities for the Storm Water Quality Management Program. Among other things, the county was to convene watershed management committees which were to meet at least four times per year. Each permittee was entitled to have a voting representative on the committees. The committees were to coordinate and monitor implementation of the Storm Water Quality Management Program. Each permittee was required to designate a technically knowledgeable representative to the appropriate watershed management committee. Each permittee was required to prepare a budget summary of moneys spent on the Storm Water Quality Management Program.

The permit granted each permittee the "necessary legal authority" to prohibit non-storm-water discharges into the storm drain system. That authority extended to prohibiting discharges from: illicit connections of all kinds; wash waters from gas stations and automotive service facilities; runoff from mobile cleaning businesses; areas where oil, fluid, or antifreeze was dripping from machinery; storage areas containing hazardous substances; swimming pool waters; washing of toxic materials; and washing impervious surfaces in industrial and commercial areas. The authority also extended to the discharge of concrete and cement-laden wash waters and prohibition of dumping of materials into storm drain systems. The legal authority extended to: requiring persons to comply with permittees' ordinances; holding dischargers to storm drain systems accountable; controlling pollutants and their potential contributors; inspecting, watching, and monitoring procedures to ensure compliance with the permit including prohibition of illicit discharges into storm drain systems; and requiring the use of best management practices to reduce pollutant discharge into the storm drain systems to the maximum extent possible.

F. Special Provisions

The regional board's executive officer had the power to alter a best management practice under specified circumstances. The county, as the principal permittee, was required to implement a public information and participation program. The program included: marking all storm drains with "`no dumping'" signs; instituting a countywide hotline to report illicit discharges and other environmental hazards; public education; every year, requiring 50 percent of all school children to be educated on storm water pollution; assessments of education; and other outreach programs.

Each permittee was required to maintain a database of entities that are "critical sources" of storm water pollution. Each permittee was required to inspect under specified circumstances critical facilities including: restaurants; automotive service businesses; retail gasoline outlets; and automotive dealerships. Further, each permittee was to evaluate best management practices and increase their severity if appropriate. Violations of the Storm Water Quality Management Program were to be investigated within specified time periods. By August 1, 2002, the permittees were to amend their ordinances or municipal codes to implement the standard urban storm water mitigation plans contained in the permit. Special requirements were imposed when discharges occur in environmentally sensitive areas.

Each permittee was required to consider storm water quality impacts as part of their California Environmental Quality Act assessments. Each permittee was required to update its general plan to include "considerations and policies" of watershed and storm water quality and quantity management. The permittees were required to educate employees involved in development planning regarding the permit's requirements.

G. Development Construction Program

The permittees were required to implement programs to "control" runoff from construction sites. Runoff from construction sites was prohibited. Non-storm-water runoff from equipment washing on construction sites was to be contained on site. Special requirements were imposed on construction sites of one acre or greater in area. Additional requirements were imposed on developments which were five acres or larger including securing a general construction activity storm water permit. The permit imposed "Numerical Design Criteria" which required that postconstruction best-management practices incorporate "either a volumetric or flow based treatment control design standard, or both" under specified circumstances. If there is a violation of a general construction activity storm water permit, the permittee may refer the violator to the state board.

H. Public Agency Activities Program

The permittees were required to minimize storm water pollution impacts. The requirements extended to: sewer systems; public construction; vehicle related facilities; landscape and recreational facilities; storm drain management; and street maintenance. The permittees were also required to participate in a study concerning possible dry weather discharges and the use of alternative treatment control best management practices.

I. Illicit Discharges and Connections

The permit states, "Permittees shall eliminate all illicit connections and . . . discharges to the storm drain system, and shall document, track, report all such cases. . . ." The elimination and reporting of such discharges required: development of an implementation program; by February 3, 2003, the municipalities provide the county with a list of all approved connections in the storm drain systems; the county to conduct an annual evaluation of illicit discharges; and training of personnel in the identification and investigation of such discharges. The permittees were to complete the screening of illicit connections as follows: open channels, no later than February 3, 2003; underground pipes by February 1, 2005; and underground pipes with a diameter of 36 inches or greater by December 12, 2006. By December 12, 2006, the permittees were to complete a review of all "permitted connections" to the storm drain systems to ensure eliminating illicit discharges. Upon receipt of a report of an illicit connection, an investigation was to be initiated within 21 days to determine the source and the responsible party. Within 180 days, the permittees were required to "ensure termination of the connection" using appropriate enforcement authority. As to illicit discharges, a permittee was required within one business day to respond to a report and clean up a discharge. Illicit discharges were to be investigated as soon as possible and appropriate enforcement action was to be pursued.

III. NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM PERMITS, PROCEDURAL HISTORY, AND STANDARDS OF REVIEW

The present appeal arises from the issuance of the permit. The legal genesis of the National Pollutant Discharge Elimination System permits for the discharge of municipal storm water has previously been described in some detail in other decisions. ( City of Burbank v. State Water Resources Control Bd. (2005) 35 Cal.4th 613, 619-621 [ 26 Cal.Rptr.3d 304, 108 P.3d 862]; City of Rancho Cucamonga v. Regional Water Quality Control Bd. (2006) 135 Cal.App.4th 1377, 1380-1381 [ 38 Cal.Rptr.3d 450].) In City of Rancho Cucamonga, our colleagues in Division Two of the Fourth Appellate District summarized the complex federal and state relationship: "`Part of the Federal Clean Water Act [ 33 U.S.C. § 1251 et seq.] is the National Pollutant Discharge Elimination System (NPDES), "[t]he primary means" for enforcing effluent limitations and standards under the Clean Water Act. ( Arkansas v. Oklahoma (1992) 503 U.S. 91, 101 [ 117 L.Ed.2d 239, 112 S.Ct. 1046].) The NPDES sets out the conditions under which the federal [Environmental Protection Agency] or a state with an approved water quality control program can issue permits for the discharge of pollutants in wastewater. ( 33 U.S.C. § 1342(a) (b).) In California, wastewater discharge requirements established by the regional boards are the equivalent of the NPDES permits required by federal law. (§ 13374.)' ( Burbank, supra, 35 Cal.4th at p. 621.) [¶] California's Porter-Cologne Act (Wat. Code, § 13000 et seq.) establishes a statewide program for water quality control. Nine regional boards, overseen by the State Board, administer the program in their respective regions. (Wat. Code, §§ 13140, 13200 et seq., 13240, and 13301.) Water Code sections 13374 and 13377 authorize the Regional Board to issue federal NPDES permits for five-year periods. (33 U.S.C. § 1342(b)(1)(B).)" ( City of Rancho Cucamonga v. Regional Water Quality Control Bd., supra, 135 Cal.App.4th at pp. 1380-1381.)

After the board issued the aforementioned December 13, 2001 permit, on January 17, 2003, a series of legal challenges, consisting of the filing administrative mandate and mandate petitions and complaints, were instituted by plaintiffs. Judgments in favor of the regional and state boards were entered on March 24, 2005. After the judgments were entered, notices of appeal were filed on June 21 and 22, 2005. The parties stipulated to the maximum extensions of time to brief the matter as allowed by California Rules of Court, rule 15(b)(1). This court had no authority to deny the stipulated extensions of time to file briefs. (Cal. Rules of Court, rule 15(b) ["The reviewing court may not shorten a stipulated extension"].) No extension of time request was ever granted by any member of this court. The final reply brief was filed on August 1, 2006. Oral argument was held on September 6, 2006.

There are varying standards of review. Many of the challenges to the content of the permit involve review of the denial of Code of Civil Procedure section 1094.5 administrative mandate petitions filed pursuant to Water Code section 13330, subdivision (b). We review the trial court's factual findings for substantial evidence. ( Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824 [ 85 Cal.Rptr.2d 696, 977 P.2d 693]; Drummey v. State Bd. of Funeral Directors (1939) 13 Cal.2d 75, 86 [ 87 P.2d 848].) Further, it is presumed the regional board considered the documents before it. ( City of Santa Cruz v. Local Agency Formation Com. (1978) 76 Cal.App.3d 381, 393-394 [ 142 Cal.Rptr. 873].) All reasonable doubts are resolved in favor of upholding the regional board's decision. ( Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 393 [ 253 Cal.Rptr. 426, 764 P.2d 278]; San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 674 [ 125 Cal.Rptr.2d 745].) We (and trial courts) examine the regional board's interpretation of legal matters utilizing a de novo standard of review. But we defer to the regional board's expertise in construing language which is not clearly defined in statutes involving pollutant discharge into storm drain sewer systems. ( Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7-8 [ 78 Cal.Rptr.2d 1, 960 P.2d 1031]; City of Rancho Cucamonga v. Regional Water Quality Control Bd., supra, 135 Cal.App.4th at p. 1384.) Finally, the trial court's denials of plaintiffs' new trial and to enter a new judgment motions and declaratory relief requests are reviewed for an abuse of discretion. ( Ashcraft v. King (1991) 228 Cal.App.3d 604, 616 [ 278 Cal.Rptr. 900] [new trial motion]; Bess v. Park (1955) 132 Cal.App.2d 49, 52 [ 281 P.2d 556] [declaratory relief].)

IV. DISCUSSION A. The Jurisdiction of the Regional Board to Issue the Permit

Plaintiffs contend the regional board did not have jurisdiction to issue the permit. Plaintiffs rely on language appearing in the Code of Federal Regulations. For example, the permittees cite to 40 Code of Federal Regulations part 123.1(g)(1) (1998) which states, "NPDES authority may be shared by two or more State agencies but each agency must have Statewide jurisdiction over a class of activities or discharges."² Further the permittees refer to the following language in 40 Code of Federal Regulations part 123.22(b) (1998), "If more than one agency is responsible for administration of a program, each agency must have statewide jurisdiction over a class of activities."³ Moreover, 40 Code of Federal Regulations part 123.1(f) (1998) states, "Any State program approved by the Administrator shall at all times be conducted in accordance with the requirements of this part."

2 40 Code of Federal Regulations part 123.1(g)(1) (1998) states in its entirety: "(g)(1) Except as may be authorized pursuant to paragraph (g)(2) of this section or excluded by § 122.3, the State program must prohibit all point source discharges of pollutants, all discharges into aquaculture projects, and all disposal of sewage sludge which results in any pollutant from such sludge entering into any waters of the United States within the State's jurisdiction except as authorized by a permit in effect under the State program or under section 402 of [the Clean Water Act]. [National Pollutant Discharge Elimination System] authority may be shared by two or more State agencies but each agency must have Statewide jurisdiction over a class of activities or discharges. When more than one agency is responsible for issuing permits, each agency must make a submission meeting the requirements of § 123.21 before [the Environmental Protection Agency] will begin formal review, [¶] (2) A State may seek approval of a partial or phased program in accordance with section 402(n) of the [Clean Water Act]."

3 40 Code of Federal Regulations part 123.22(b) (1998) states in its entirety: "A description (including organization charts) of the organization and structure of the State agency or agencies which will have responsibility for administering the program, including the information listed below. If more than one agency is responsible for administration of a program, each agency must have statewide jurisdiction over a class of activities. The responsibilities of each agency must be delineated, their procedures for coordination set forth, and an agency may be designated as a `lead agency' to facilitate communications between [the Environmental Protection Agency] and the State agencies having program responsibility. If the State proposes to administer a program of greater scope of coverage than is required by Federal law, the information provided under this paragraph shall indicate the resources dedicated to administering the Federally required portion of the program, [¶] (1) A description of the State agency staff who will carry out the State program, including the number, occupations, and general duties of the employees. The State need not submit complete job descriptions for every employee carrying out the State program. [¶] (2) An itemization of the estimated costs of establishing and administering the program for the first two years after approval, including cost of the personnel listed in paragraph (b)(1) of this section, cost of administrative support, and cost of technical support. [¶] (3) An itemization of the sources and amounts of funding, including an estimate of Federal grant money, available to the State Director for the first two years after approval to meet the costs listed in paragraph (b)(2) of this section, identifying any restrictions or limitations upon this funding."

Plaintiffs reason that under state law, the regional board does not have statewide jurisdiction. Water Code section 13100 states that the state and regional boards are part of the California Environmental Protection Agency. Water Code section 13200 identifies the scope of jurisdiction of the nine regional boards. The regional board's limited jurisdiction is defined in Water Code section 13200, subdivision (d).⁴ The powers of the regional boards are set forth in Water Code section 13225 with the caveat that the powers exist "with respect to its region."⁵ Because the regional board is not a statewide agency, plaintiffs argue the permit is void.

4 Water Code section 13200, subdivision (d) states: "The state is divided, for the purpose of this division, into nine regions: [¶] Los Angeles region, which comprises all basins draining into the Pacific Ocean between the southeasterly boundary, located in the westerly part of Ventura County, of the watershed of Rincon Creek and a line which coincides with the southeasterly boundary of Los Angeles County from the ocean to San Antonio Peak and follows thence the divide between San Gabriel River and Lytle Creek drainages to the divide between Sheep Creek and San Gabriel River drainages."

5 Water Code section 13225 states in its entirety: "Each regional board, with respect to its region, shall: [¶] (a) Obtain coordinated action in water quality control, including the prevention and abatement of water pollution and nuisance. [¶] (b) Encourage and assist in self-policing waste disposal programs, and upon application of any person, advise the applicant of the condition to be maintained in any disposal area or receiving waters into which the waste is being discharged. [¶] (c) Require as necessary any state or local agency to investigate and report on any technical factors involved in water quality control or to obtain and submit analyses of water; provided that the burden, including costs, of such reports shall bear a reasonable relationship to the need for the report and the benefits to be obtained therefrom. [¶] (d) Request enforcement by appropriate federal, state and local agencies of their respective water quality control laws.[¶] (e) Recommend to the state board projects which the regional board considers eligible for any financial assistance which may be available through the state board, [¶] (f) Report to the state board and appropriate local health officer any case of suspected contamination in its region, [¶] (g) File with the state board, at its request, copies of the record of any official action. [¶] (h) Take into consideration the effect of its actions pursuant to this chapter on the California Water Plan adopted or revised pursuant to Division 6 (commencing with Section 10000) of this code and on any other general or coordinated governmental plan looking toward the development, utilization or conservation of the water resources of the state, [¶] (i) Encourage regional planning and action for water quality control."

This argument has no merit. Effective September 22, 1989, the authority to issue National Pollutant Discharge Elimination System permits was vested by the federal Environmental Protection Agency in the state board. ( 54 Fed.Reg. 40664, 40665 (Oct. 3, 1989); see Building Industry Assn. of San Diego County v. State Water Resources Control Bd. (2004) 124 Cal.App.4th 866, 875 [ 22 Cal.Rptr.3d 128].) The state board is organized into nine regional boards which are part of the California Environmental Protection Agency. (Wat. Code, §§ 174 et seq., 13100; see City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1405 [ 38 Cal.Rptr.3d 373].) The nine regional boards are authorized under this state's laws to issue National Pollutant Discharge Elimination System permits. ( Building Industry Assn. of San Diego County v. State Water Resources Control Bd., supra, 124 Cal.App.4th at p. 875; Wat. Code, § 13374.) The United States Environmental Protection Agency memorandum of agreement with the state board complies with the statewide jurisdiction requirements imposed by the federal regulations. The fact the state board is organized into nine regional boards is legally irrelevant. The state board has statewide jurisdiction.

Further, we agree with the Attorney General that plaintiffs may not challenge the regional board's authority to issue a National Pollutant Discharge Elimination System permit in this proceeding. Such an indirect challenge to the board's authority is barred by the de facto officer doctrine. The Supreme Court has described the de facto officer doctrine, which bars a challenge to an agency's action based on a purported lack of legal authority to act, thusly: "[W]e conclude that under the `de facto officer' doctrine prior actions of the Commission cannot be set aside on the ground that the appointment of the commissioners who participated in the decision may be vulnerable to constitutional challenge. As this court explained in In re Redevelopment Plan for Bunker Hill (1964) 61 Cal.2d 21, 41-42 [ 37 Cal.Rptr. 74, 389 P.2d 538]: `The de facto doctrine in sustaining official acts is well established. [Given the existence of] a de jure office, "[p]ersons claiming to be public officers while in possession of an office, ostensibly exercising their function lawfully and with the acquiescence of the public, are de facto officers. . . . The lawful acts of an officer de facto, so far as the rights of third persons are concerned, are, if done within the scope and by the apparent authority of office, as valid and binding as if he were the officer legally elected and qualified for the office and in full possession of it." [Citations.]' (See also Pickens v. Johnson (1954) 42 Cal.2d 399, 410 [ 267 P.2d 801] [`There is no question but that . . . the status of a judge de facto attached to his action. The office to which he was assigned was a de jure office. By acting under regular assignment under a statute authorizing it he was acting under color of authority as provided by law. His conduct in trying the cases and rendering judgment therein cannot here be questioned.'].)" ( Marine Forests Society v. California Coastal Com. (2005) 36 Cal.4th 1, 54 [ 30 Cal.Rptr. 3d 30, 113 P.3d 1062].) Here, plaintiffs are challenging the permit by attacking the regional board's authority. Under these circumstances, this they may not do in what amounts to a licensing proceeding. ( Ibid.; In re Redevelopment Plan for Bunker Hill, supra, 61 Cal.2d at pp. 41-42.)

Finally there is no merit to the contention that because the regional board is not an elected body, it cannot make the financial decisions of the scope entailed by the permit. The board's powers exist because of: the Clean Water Act which was adopted and amended by elected members of Congress and signed into law by elected presidents; provisions of the Water Code which were enacted by elected legislators and approved by elected governors; and the members, who must have special competence, are appointed by an elected governor and confirmed by the elected State Senate. (Wat. Code, § 13201, subds. (a), (b).) The democratic processes of government control every aspect of the creation of the board, its legal authority, and the selection of its members. Further, the decisions of regulatory institutions such as the regional board, are entitled by law to a presumption of competence and propriety. ( City of Rancho Cucamonga v. Regional Water Quality Control Bd., supra, 135 Cal.App.4th at p. 1384; Communities for a Better Environment v. State Water Resources Control Bd. (2003) 109 Cal.App.4th 1089, 1104 [1 Cal.Rptr.3d 76].)

B. The Motions to Strike

Plaintiffs argue that the trial court erroneously granted the regional board's motions to strike portions of the petition. Plaintiffs contend: the motions to strike were in fact disguised summary adjudication motions; the orders granting the motions to strike did not resolve entire causes of action; and hence, the orders violated Code of Civil Procedure section 437c, subdivision (f)(1). This contention has no merit. Code of Civil Procedure section 436 allows a court to strike portions of a cause of action. ( City of Rancho Cucamonga v. Regional Water Quality Control Bd., supra, 135 Cal.App.4th at p. 1386; PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683 [ 40 Cal.Rptr.2d 169].)

C. The State Board's Demurrer

Plaintiffs argue that the trial court erroneously sustained the state board's demurrer to the petitions. The state board contended it was not properly joined as a party to the litigation. A group of plaintiffs alleged the state board required the regional boards to adopt terms and conditions on National Pollutant Discharge Elimination System permits without complying with Government Code sections 11340.5, subdivision (a)⁶ and 11352, subdivision (b), which are part of the Administrative Procedure Act. Plaintiffs had a duty to specifically allege every fact that would give rise to liability by the state board. ( Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 [11 Cal.Rptr.3d 222, 86 P.3d 290]; Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795 [ 221 Cal.Rptr. 840, 710 P.2d 907].) The state board refused to assume jurisdiction over this case. There were thus no specific allegations as to the state board to hold it liable as it engaged in no independent activity. Hence, this contention has no merit and the demurrer was properly sustained. ( City of Rancho Cucamonga v. Regional Water Quality Control Bd., supra, 135 Cal.App.4th at p. 1383; People ex rel Cal. Regional Wat. Quality Control Bd. v. Barry (1987) 194 Cal.App.3d 158, 177 [ 239 Cal.Rptr. 349].)

6 Government Code section 11340.5, subdivision (a) states, "No state agency shall issue, utilize, enforce, or attempt to enforce any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, which is a regulation as defined in Section 11342.600, unless the guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule has been adopted as a regulation and filed with the Secretary of State pursuant to this chapter."

D. The Declaratory Relief Claims

The trial court sustained the regional board's demurrers to the declaratory relief claims. Plaintiffs argue they were entitled to declaratory relief as to whether the permittees were required to "go beyond the [maximum extent practicable]" standard to comply with part 2 of the permit which relates to receiving water limitations; part 2 contained a "safe harbor" if the permittees were acting in good faith in implementing best management practices to control excessive discharge of pollutants and nuisance conditions; the requirement in part 4 of the permit that each permittee's general plan and California Environmental Quality Act review take into account storm water runoff is lawful; the regional board was required to consider the economic impact of the proposed permit and its effect on housing; and the regional board was required to perform a "cost/benefit analysis" of the monitoring and reporting program.

When a remedy has been designated by the Legislature to review an administrative action, declaratory relief is unavailable. ( State of California v. Superior Court (1974) 12 Cal.3d 237, 249 [ 115 Cal.Rptr. 497, 524 P.2d 1281]; Scott v. City of Indian Wells (1972) 6 Cal.3d 541, 546 [ 99 Cal.Rptr. 745, 492 P.2d 1137].) (9) Water Code section 13330, subdivision (b) provides that a regional board order may be reviewed by a Code of Civil Procedure section 1094.5 administrative mandate petition filed within 30 days after the state board denies review. Therefore, the demurrer was correctly sustained to the declaratory relief claims. ( Hill v. City of Manhattan Beach (1971) 6 Cal.3d 279, 287 [ 98 Cal.Rptr. 785, 491 P.2d 369]; Hostetter v. Alderson (1952) 38 Cal.2d 499, 500 [ 241 P.2d 230].)

E. The Regional Board Has Not Unlawfully Interfered in Local General Plans and California Environmental Quality Act Reviews

The permit requires the permittees to update their general plans to include watershed and storm water runoff as considerations in land use, housing, conservation, and open space planning. Further, the permittees were required to amend their California Environmental Quality Act process to ensure review of the effect of commercial and residential development on storm water runoff. Plaintiffs argue these aspects of the permit violate the separation of powers doctrine. This contention has no merit. As noted, the regional boards are part of a joint state and federal process to enforce the Clean Water Act. ( City of Burbank v. State Water Resources Control Bd., supra, 35 Cal.4th at pp. 619-620; City of Rancho Cucamonga v. Regional Water Quality Control Bd., supra, 135 Cal.App.4th at pp. 1380-1381.) The general plan powers and duties of cities and counties are limited by statewide law. (Cal. Const., art. XI, § 7; Gov. Code, § 65030.1; Jackson v. City of Los Angeles (2003) 111 Cal.App.4th 899, 907-908 [ 4 Cal.Rptr.3d 325]; Suter v. City of Lafayette (1997) 57 Cal.App.4th 1109, 1118 [ 67 Cal.Rptr.2d 420].) Further, the Clean Water Act supersedes all conflicting state and local pollution laws. ( Arkansas v. Oklahoma (1992) 503 U.S. 91, 101 [ 117 L.Ed.2d 239, 112 S.Ct. 1046]; City of Burbank v. State Water Resources Control Bd., supra, 35 Cal.4th at p. 621.) The state and regional boards are vested with the primary responsibility of controlling water quality. (Wat. Code, § 13001; see Arkansas v. Oklahoma, supra, 503 U.S. at p. 101; Hampson v. Superior Court (1977) 67 Cal.App.3d 472, 484 [ 136 Cal.Rptr. 722].) Regional boards are explicitly granted the authority to issue orders for purposes of enforcing the federal Clean Water Act. (Wat. Code, § 13377.) Federal law requires that permits include controls to reduce pollutant discharge in areas of new development and significant redevelopment — the very area where regional board review occurs. ( 40 C.F.R. § 122.26(d)(2)(iv)(A)(2) (2006).) So long as the regional boards' decisions carry out federal and state water quality mandates resulting from express legislative action as the challenged orders in this case in fact do, no separation of powers issue is present. ( Kugler v. Yocum (1968) 69 Cal.2d 371, 375-377 [ 71 Cal.Rptr. 687, 445 P.2d 303]; Salmon Trollers Marketing Assn. v. Fullerton (1981) 124 Cal.App.3d 291, 300 [ 177 Cal.Rptr. 362].) Given the foregoing, we need not address the waiver, laches, and estoppel contentions of the regional and state boards and the interveners.

F. Failure to Comply with the California Environmental Quality Act

Plaintiffs argue that the permit issuance process violates provisions of the California Environmental Quality Act. Plaintiffs rely on Water Code section 13389 which provides that chapter 3 of the California Environmental Quality Act does not apply to National Pollutant Discharge Elimination Systems permit proceedings: "Neither the state board nor the regional boards shall be required to comply with the provisions of Chapter 3 (commencing with Section 21100) of Division 13 of the Public Resources Code prior to the adoption of any waste discharge requirement, except requirements for new sources as defined in the Federal Water Pollution Control Act or acts amendatory thereof or supplementary thereto." California Code of Regulations, title 23, section 3733 also states, "Environmental documents are not required for adoption of waste discharge requirements under Chapter 5.5, Division 7 of the Water Code, except requirements for new sources as defined in the Federal Water Pollution Control Act. This exemption is in accordance with Water Code Section 13389 which does not apply to the policy provisions of Chapter 1 of CEQA." Plaintiffs argue that the California Environmental Quality Act applies to: the receiving water limitations; the revision of the Storm Water Quality Management Program; and the development planning program. (See City of Arcadia v. State Water Resources Control Bd., supra, 135 Cal.App.4th at pp. 1420-1426; Committee for a Progressive Gilroy v. State Water Resources Control Bd. (1987) 192 Cal.App.3d 847, 862 [ 237 Cal.Rptr. 723].)

Chapter 3 of the California Environmental Quality Act was originally adopted in 1970. (Stats. 1970, ch. 1433, § 1, pp. 2780, 2781-2782.) The original chapter 3 of the California Environmental Quality Act required all state agencies, boards, and commissions that proposed a project which would have a significant effect on the environment to prepare a "detailed statement" setting forth the environmental effect of the contemplated undertaking.⁷ (See Russian Hill Improvement Assn. v. Board of Permit Appeals (1974) 44 Cal.App.3d 158, 166 [ 118 Cal.Rptr. 490]; City of Orange v. Valenti (1974) 37 Cal.App.3d 240, 246 [ 112 Cal.Rptr. 379].) Water Code section 13389 was adopted as urgency legislation to comply with certain provisions of the Clean Water Act provisions establishing the National Pollution Discharge Elimination System. (Stats. 1972, ch. 1256, § 3, p. 2490.) Expressly for that purpose, the California Legislature enacted chapter 5.5, the "Water Quality" division, which includes Water Code section 13389. (Wat. Code, § 13370 ⁸; City of Brentwood v. Central Valley Regional Water Quality Control Bd. (2004) 123 Cal.App.4th 714, 723 [ 20 Cal.Rptr.3d 322]; Sierra Club v. Union Oil Co. of California (9th Cir. 1987) 813 F.2d 1480, 1483.) When Water Code section 13389 became effective on December 19, 1972, chapter 2.6 of the California Environmental Quality Act had just been enacted, also as urgency legislation, and it consisted of Public Resources Code sections 21080 through 21090. The new chapter 2.6 of the California Environmental Quality Act became effective on December 5, 1972. (Stats. 1972, ch. 1154, § 19, p. 2280.) Chapter 3 of the California Environmental Quality Act was also amended effective December 5, 1972, and it applied to all environmental assessments by state agencies, boards, and commissions. Former Public Resources Code section 21100, the core provision of the 1972 version of the California Environmental Quality Act as it related to state agencies, boards, and commissions, stated: "All state agencies, boards, and commissions shall prepare, or cause to be prepared . . . and certify the completion of an environmental impact report on any project they propose to carry out or approve which may have a significant effect on the environment." (Stats. 1972, ch. 1154, § 2.5, p. 2274; see Desert Environment Conservation Assn. v. Public Utilities Com. (1973) 8 Cal.3d 739, 742 [ 106 Cal.Rptr. 31, 505 P.2d 223]; San Francisco Ecology Center v. City and County of San Francisco (1975) 48 Cal.App.3d 584, 594, fn. 8 [ 122 Cal.Rptr. 100].) Beyond question, the Legislature intended that chapter 3 of the California Environmental Quality Act not apply to National Pollution Discharge Elimination System permits — in that respect Water Code section 13389 is entirely clear.

7 Public Resources Code section 21100 as enacted in 1970 stated: "All state agencies, boards, and commissions shall include in any report on any project they propose to carry out which could have a significant effect on the environment of the state, a detailed statement by the responsible state official setting forth the following: [¶] (a) The environmental impact of the proposed action, [¶] (b) Any adverse environmental effects which cannot be avoided if the proposal is implemented, [¶] (c) Mitigation measures proposed to minimize the impact. [¶] (d) Alternatives to the proposed action, [¶] (e) The relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, [¶] (f) Any irreversible environmental changes which would be involved in the proposed action should it be implemented." (Stats. 1970, ch. 1433, § 1, pp. 2780, 2781-2782.)

8 Water Code section 13370 states: "(a) The Federal Water Pollution Control Act ( 33 U.S.C. Sec. 1251 et seq.), as amended, provides for permit systems to regulate the discharge of pollutants and dredged or fill material to the navigable waters of the United States and to regulate the use and disposal of sewage sludge, [¶] (b) The Federal Water Pollution Control Act, as amended, provides that permits may be issued by states which are authorized to implement the provisions of that act. [¶] (c) It is in the interest of the people of the state, in order to avoid direct regulation by the federal government of persons already subject to regulation under state law pursuant to this division, to enact this chapter in order to authorize the state to implement the provisions of the Federal Water Pollution Control Act and acts amendatory thereof or supplementary thereto, and federal regulations and guidelines issued pursuant thereto, provided, that the state board shall request federal funding under the Federal Water Pollution Control Act for the purpose of carrying out its responsibilities under this program."

But on December 19, 1972, when Water Code section 13389 was enacted, chapter 2.6 of the California Environmental Quality Act, which contains generalized requirements for the preparation of environmental impact reports for discretionary projects, had just been adopted effective December 5, 1972. Chapter 2.6 of the California Environmental Quality Act applies to discretionary projects proposed by public agencies. (Former Pub. Resources Code, § 21080.) Pursuant to new chapter 2.6 of the California Environmental Quality Act, all public agencies were required to adopt by ordinance, resolution, or the like procedures for preparation of environmental impact reports. (Former Pub. Resources Code, § 21082.) The Office of Planning and Research was directed to adopt proposed guidelines for the preparation of environmental impact reports including a listing of projects determined not to have a significant impact on the environment. (Former Pub. Resources Code, §§ 21083- 21088.) Finally, chapter 2.6, as adopted in 1972, allowed a public agency to charge fees for the preparation of an environmental impact report and defined public and private developments pursuant to a redevelopment plan as a single project. (Former Pub. Resources Code, §§ 21089- 21090.)

It can be argued that even though chapter 3 with its environmental impact preparation requirement for state agencies, boards, and commissions was not to apply to National Pollution Discharge Elimination System permits, the discretionary projects requirements in chapter 2.6 of the California Environmental Quality Act mandated environmental review. Hence, the argument would be that the Legislature in enacting Water Code section 13389 did not intend to obviate the duty pursuant to chapter 2.6 of the California Environmental Quality Act to prepare an environmental impact report. We are unpersuaded by this analysis. Former Public Resources Code section 20180, subdivision (a), the core provision relating to discretionary projects, stated: "(a) Except as otherwise provided in this division, this division shall apply to discretionary projects proposed to be carried out or approved by public agencies including, but not limited to, the enactment and amendment of zoning ordinances, the issuance of zoning variances, the issuance of conditional use permits and the approval of tentative subdivision maps (except where such a project is exempt from the preparation of an environmental impact report pursuant to Section 21166)." (Stats. 1972, ch. 1154, § 2.3, p. 2272; see People v. County of Kern (1974) 39 Cal.App.3d 830, 839 [ 115 Cal.Rptr. 67]; Friends of Lake Arrowhead v. Board of Supervisors (1974) 38 Cal.App.3d 497, 510 [ 113 Cal.Rptr. 539].) As can be noted, Public Resources Code section 21080, subdivision (a) established that a discretionary project was subject to the environmental impact requirement. But the requirement that a state agency, board, and commission prepare an environmental report was found in Public Resources Code section 21100 which was, and is now, located in chapter 3 of the California Environmental Quality Act. The obligation imposed on a state agency, board, and commission to prepare an environmental impact report existed in chapter 3 before the adoption of Water Code section 13389 and it remained there after the 1972 amendments to the California Environmental Quality Act. No doubt, since 1972 when the Legislature adopted Water Code section 13389 and the then new chapter 2.6, the California Environmental Quality Act has been repeatedly amended. But defendants cite no evidence the Legislature ever intended to: impose a duty on regional boards to prepare environmental impact reports; require regional boards to engage in any other form of environmental review specified in the California Environmental Quality Act; or to otherwise modify Water Code section 13389.

Defendants rely on the analysis of our colleague Presiding Justice Judith D. McConnell of Division One of the Fourth Appellate District in City of Arcadia v. State Water Resources Control Bd., supra, 135 Cal.App.4th at pages 1420-1430, that regional board basin plans are subject to limited California Environmental Quality Act review. The City of Arcadia decision does not involve the issuance of a National Pollution Discharge Elimination System permit. Rather, it involves the development of a basin plan. ( City of Arcadia v. State Water Resources Control Bd., supra, at pp. 1420-1430.) We agree with the Attorney General that a basin plan is subject to limited environmental review pursuant to Public Resources Code section 21080.5. Public Resources Code section 21080.5, subdivision (a) vests the Secretary of the Resources Agency with the authority to require limited environmental review: "(a) Except as provided in Section 21158.1, when the regulatory program of a state agency requires a plan or other written documentation containing environmental information and complying with paragraph (3) of subdivision (d) to be submitted in support of an activity listed in subdivision (b), the plan or other written documentation may be submitted in lieu of the environmental impact report required by this division if the Secretary of the Resources Agency has certified the regulatory program pursuant to this section." The secretary's authority extends to requiring limited environmental review when an agency adopts "standards, rules, regulations, or plans for use" in a regulatory program. (Pub. Resources Code, § 21080.5, subd. (b)(2).) The secretary has certified the regional boards' basin plan program as requiring limited environmental review. ( City of Arcadia v. State Water Resources Control Bd., supra, 135 Cal.App.4th at p. 1422; Cal. Code Regs., tit. 14, § 15251, subd. (g).⁹) (12) The resources secretary has never identified the National Pollution Discharge Elimination System permit system as a Public Resources Code section 21080.5 certified program. Thus, City of Arcadia does not require California Environmental Quality Act review prior to the issuance of a National Pollution Discharge Elimination System permit.

9 California Code of Regulations, title 14, section 15251, subdivision (g) states: "The following programs of state regulatory agencies have been certified by the Secretary for Resources as meeting the requirements of Section 21080.5: [¶] . . . [¶](g) The Water Quality Control (Basin)/208 Planning Program of the State Water Resources Control Board and the Regional Water Quality Control Boards.

G.-L.^_ G. Sufficiency Of The Evidence Contentions 1. Overview

_ See footnote, ante, page 985.

Many of plaintiffs' contentions are overtly stated or deftly disguised sufficiency of the evidence arguments. We agree with the intervenors that plaintiffs in making these assertions have failed in every respect to set forth all of the relevant evidence. As such, all evidence sufficiency contentions have been waived. ( State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 749; see Foreman Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)

2. The reasonableness of the permit requirements

Plaintiffs argue that the permit violates the statutory requirement it be reasonable. Plaintiffs contend that four parts of the permit exceed federal requirements which only require that a permit restrict pollutant discharges to the maximum extent possible. Plaintiffs identify three parts of the permit which exceed the federal maximum extent possible limit and reason as follows. Part 2.1 of the permit, which involves receiving water restrictions, prohibits all water discharges which violate water quality standards or objectives regardless of whether the best management practices are reasonable. Part 2.4, also part of the receiving water restrictions, permits the regional board to adopt best management practices without any reasonableness restriction. Part 3.C requires the permittees to revise their storm water quality management programs in order to implement the total maximum daily loads for impaired water bodies. As a result, according to plaintiffs, parts 3.G and 4 authorize the regional board to require strict requirements with numeric limits on pollutants which are incorporated into the total maximum daily load restrictions. Because these four parts of the permit exceed federal requirements, plaintiffs argue the permit violates a state law requirement derived from Water Code sections 13000, 13241, and 13263, subdivision (a)⁸ that restrictions on storm water system discharges be reasonable. These contentions have no merit. To begin with, insofar as these contentions involve sufficiency of the evidence contentions, they are waived because of a failure to set forth all of the applicable evidence. ( Foreman Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881; State Water Resources Control Bd. Cases, supra, 136 Cal.App.4th at p. 749.) In any event, regardless of whether the permit imposed requirements beyond what plaintiffs contend is the maximum extent feasible, the regional board has the authority to impose additional restrictions. As the intervenors explain, title 33 United States Code section 1342(p)(3)(B) states in part: "Permits for discharges from municipal storm sewers — [¶] . . . (ii) shall include a requirement to effectively prohibit non-stormwater discharges into the storm sewers; and [¶] (iii) shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the . . . State determines appropriate for the control of such pollutants." In fact, the regional board had the duty to place limits on the release of pollutants into certain waters. Our colleagues in Division One of the Fourth Appellate District have explained: the Clean Water Act requires that states identify a level of permissible pollution, the "total maximum daily load"; the total maximum daily load must be established at a level to achieve certain water standards; and the National Pollutant Elimination System permits must be consistent with the amount of pollutants described in the state specified total maximum daily load. ( City of Arcadia v. State Water Resources Control Bd., supra, 135 Cal.App.4th at p. 1404; 33 U.S.C. § 1313(d).) The federal Clean Water Act requires the following, "Except as in compliance with this section and sections . . . [1312, 1316, 1317, 1328, 1342, and 1344] of this Act, the discharge of any pollutant by any person shall be unlawful." ( 33 U.S.C. § 1311(a).) In terms of the regional board's statutory duty in setting a total maximum daily load, the Clean Water Act requires: "Each State shall establish for the waters identified in paragraph (1)(A) of this subsection, and in accordance with the priority ranking, the total maximum daily load, for those pollutants which the Administrator identifies under section [1314(a)(2)] as suitable for such calculation. Such load shall be established at a level necessary to implement the applicable water quality standards. . . ." ( 33 U.S.C. § 1313(d)(1)(C).) As can be noted, the regional board is permitted to take into account the maximum extent practicable limitation in setting the total maximum daily load. ( City of Arcadia v. State Water Resources Control Bd., supra, 136 Cal.App.4th at p. 1428.) The regional board's total maximum daily load specification in this case was entirely consistent with federal water quality law. Nothing in the Water Code can circumvent the foregoing federally imposed requirements as to the calculation of the total maximum daily load. (See City of Burbank v. State Water Resources Control Bd., supra, 35 Cal.4th at pp. 618, 626-627.) And the regional board's authority in setting the total maximum daily load extended to imposing requirements beyond the maximum extent practicable. ( City of Arcadia v. State Water Resources Control Bd., supra, 135 Cal.App.4th at p. 1428; Building Industry Assn. of San Diego County v. State Water Resources Control Bd., supra, 124 Cal.App.4th at pp. 885-886.) There is substantial evidence the permit imposes reasonable pollutant discharge requirements. The regional board had before it the study entitled "Fundamentals of Urban Runoff Management" which detailed the feasibility of the restrictions at issue. In footnote 6 of the trial court's March 24, 2005 statement of decision are 16 separate studies or analyses that evaluate the reasonableness of the restrictions at issue. Further, as described below, there was a vast array of reports and official papers that addressed the reasonableness issue in varying contexts ranging from economics to housing. Substantial evidence supports the trial court's finding that the permit's restrictions on pollutant discharge are reasonable. It is presumed the regional board examined these reports. ( City of Santa Cruz v. Local Agency Formation Com., supra, 76 Cal.App.3d at pp. 393-394; see Laurel Heights Improvement Assn. v. Regents of the University of California, supra, 47 Cal.3d at p. 393.) There is likewise no merit to the factually unsupported theory of the county and the flood control district that they cannot comply with the permit. The county and the flood control district assert, without citation to any evidence in the record, they cannot comply with the permit thereby rendering it, as matter of law, unreasonable. We agree with the intervenors that there is insufficient facts to permit an evidentiary challenge of the type asserted by the county and the flood control district. ( Building Industry Assn. of San Diego County v. State Water Resources Control Bd., supra, 124 Cal.App.4th at p. 888; Cal. Rules of Court, rule 14(a)(1)(C).)

8 Water Code section 13000 states: "The Legislature finds and declares that the people of the state have a primary interest in the conservation, control, and utilization of the water resources of the state, and that the quality of all the waters of the state shall be protected for use and enjoyment by the people of the state. [¶] The Legislature further finds and declares that activities and factors which may affect the quality of the waters of the state shall be regulated to attain the highest water quality which is reasonable, considering all demands being made and to be made on those waters and the total values involved, beneficial and detrimental, economic and social, tangible and intangible. [¶] The Legislature further finds and declares that the health, safety and welfare of the people of the state requires that there be a statewide program for the control of the quality of all the waters of the state; that the state must be prepared to exercise its full power and jurisdiction to protect the quality of waters in the state from degradation originating inside or outside the boundaries of the state; that the waters of the state are increasingly influenced by interbasin water development projects and other statewide considerations; that factors of precipitation, topography, population, recreation, agriculture, industry and economic development vary from region to region within the state; and that the statewide program for water quality control can be most effectively administered regionally, within a framework of statewide coordination and policy." The portions of Water Code section 13241 upon which plaintiff rely state: "Each regional board shall establish such water quality objectives in water quality control plans as in its judgment will ensure the reasonable protection of beneficial uses and the prevention of nuisance; however, it is recognized that it may be possible for the quality of water to be changed to some degree without unreasonably affecting beneficial uses. Factors to be considered by a regional board in establishing water quality objectives shall include, but not necessarily be limited to, all of the following: [¶] . . . (c) Water quality conditions that could reasonably be achieved through the coordinated control of all factors which affect water quality in the area. [¶] (d) Economic considerations. [¶] (e) The need for developing housing within the region. [¶] (f) The need to develop and use recycled water." Water Code section 13263, subdivision (a) states: "The regional board, after any necessary hearing, shall prescribe requirements as to the nature of any proposed discharge, existing discharge, or material change in an existing discharge, except discharges into a community sewer system, with relation to the conditions existing in the disposal area or receiving waters upon, or into which, the discharge is made or proposed. The requirements shall implement any relevant water quality control plans that have been adopted, and shall take into consideration the beneficial uses to be protected, the water quality objectives reasonably required for that purpose, other waste discharges, the need to prevent nuisance, and the provisions of Section 13241."

3. Failure to consider the economic effects of the permit and engage in a proper cost benefit analysis

Plaintiffs argue that the regional board failed to consider the economic impact of issuance of the permits. A regional board is authorized to issue a permit which imposes more protective restrictions on waste water discharge than required by the Clean Water Act. (Wat. Code, § 13377.)⁹ As noted, Water Code section 13241, subdivision (d) requires that the regional board consider the economic effect including the cost of compliance of the issuance of the permit. (See fn. 6, supra.) Plaintiffs argue the permit imposes conditions more stringent than required by the federal Clean Water Act. Therefore, they reason that the regional board was required to consider the economic effect of the permit. ( City of Burbank v. State Water Resources Control Bd., supra, 35 Cal.4th at p. 618 ["When, however, a regional board is considering whether to make the pollutant restrictions in a wastewater discharge permit more stringent than federal law requires, California law allows the board to take into account economic factors, including the wastewater discharger's cost of compliance" (orig. italics)]; City of Arcadia v. State Water Resources Control Bd., supra, 135 Cal.App.4th at pp. 1415-1418 [finding sufficient consideration of economic effect of total daily maximum loads for trash restriction imposed in 2001 permit].) Further, plaintiffs argue that the regional board failed to conduct a cost benefit analysis as required by Water ode sections 13165,¹⁰ 13225, subdivision (c),¹¹ 13267, subdivision (b)¹² before imposing monitoring and reporting obligations as part of the permit. These contentions have no merit. To begin with, insofar as plaintiffs argue that the there was no substantial evidence these issues were considered, they have waived their opportunity to do so because they failed to set forth all of the documents considered by the regional board. Plaintiffs have failed to detail an extensive array of reports and analysis appearing in the administrative record. ( Foreman Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881; State Water Resources Control Bd. Cases, supra, 136 Cal.App.4th at p. 749.) Nonetheless this contention is without merit. The permit explicitly states it is intended to provide a cost-effective storm water pollution program to the maximum extent possible. The permit applies the same cost-effective analysis to efforts to reduce the flow of pollutants into receiving waters. Moreover, the regional board in its findings referred to a report specifying how the "maximum extent practicable" requirement includes considerations of costs and benefit. The regional board had before it: a study of costs prepared by the Maryland Department of Environment; a 58-page study prepared for Parsons Engineering Service on the costs and benefits of storm water best management practices; the extensive federal Environmental Protection Agency data summary of best management practices and their costs which include programs incorporated into the permit; a federal Environmental Protection Agency fact sheet showing the cost effectiveness of reductions in storm water run-off; a federal Environmental Protection Agency document detailing the economic benefits of run off controls; a 44-page federal Environmental Protection Agency document detailing cost analyses of various best management practices; a 99-page report entitled "Cost Analysis" on storm water programs in the state of Washington; a similar analysis prepared for the Commonwealth of Virginia; a federal Environmental Protection Agency analysis of the economic effects of clean water; a lengthy analysis prepared by the federal Environmental Protection Agency on the effects of restrictions of runoff on housing values; and an 11-page study entitled, "The Economics of Watershed Protection." It is presumed the regional board examined these reports. ( City of Santa Cruz v. Local Agency Formation Com., supra, 76 Cal.App.3d at pp. 393-394; see Laurel Heights Improvement Assn. v. Regents of the University of California, supra, 47 Cal.3d at p. 393.) This constitutes substantial evidence the regional board considered the costs and benefits of implementation of the permit. Finally, for the foregoing reasons, the trial court did to abuse its discretion when it denied the posttrial motions which asserted the regional board did not consider the economic consequences of the permit.

9 Water Code section 13377 states, "Notwithstanding any other provision of this division, the state board or the regional boards shall, as required or authorized by the Federal Water Pollution Control Act, as amended, issue waste discharge requirements and dredged or fill material permits which apply and ensure compliance with all applicable provisions of the act and acts amendatory thereof or supplementary, thereto, together with any more stringent effluent standards or limitations necessary to implement water quality control plans, or for the protection of beneficial uses, or to prevent nuisance."

10 Water Code section 13165 states, "The state board may require any state or local agency to investigate and report on any technical factors involved in water quality control; provided that the burden, including costs, of such reports shall bear a reasonable relationship to the need for the reports and the benefits to be obtained therefrom."

11 Water Code section 13225, subdivision (c) states: "Each regional board, with respect to its region, shall: [¶] (c) Require as necessary any state or local agency to investigate and report on any technical factors involved in water quality control or to obtain and submit analyses of water; provided that the burden, including costs, of such reports shall bear a reasonable relationship to the need for the report and the benefits to be obtained therefrom."

12 Water Code section 13267, subdivision (b)(1) states: "In conducting an investigation specified in subdivision (a), the regional board may require that any person who has discharged, discharges, or is suspected of having discharged or discharging, or who proposes to discharge waste within its region, or any citizen or domiciliary, or political agency or entity of this state who has discharged, discharges, or is suspected of having discharged or discharging, or who proposes to discharge, waste outside of its region that could affect the quality of waters within its region shall furnish, under penalty of perjury, technical or monitoring program reports which the regional board requires. The burden, including costs, of these reports shall bear a reasonable relationship to the need for the report and the benefits to be obtained from the reports. In requiring those reports, the regional board shall provide the person with a written explanation with regard to the need for the reports, and shall identify the evidence that supports requiring that person to provide the reports."

4. Failure to consider the effect of the permit on housing

Plaintiffs argue that the regional board neglected to consider the effect of the permit on the need to develop housing as required by Water Code section 13241, subdivision (e). (See fn. 6, supra.) Plaintiffs argue that the Legislature has determined that all state agencies such as the regional board must "facilitate the improvement and development" of affordable housing. (Gov. Code, § 65580, subds. (c)-(d).) Plaintiffs argue: the permit is designed to impose new storm runoff limitations on future residential projects; the Standard Urban Water Mitigation Plan portion of the permit applies to both development and redevelopment projects; the permit requires that runoff mitigation occur on single family residences occupying one acre or more and 10-unit or more housing developments; among the mitigation requirements are retention of runoff and erosion from construction sites; transfers of property were subject to maintenance agreements; and the permit will require a significant amount of land to comply with treatment control best management practices. Plaintiffs have failed to detail an extensive array of reports and analyses appearing in the administrative record. Thus, the issue of whether there is substantial evidence the regional board considered the effect of the permit on housing has been waived. ( Foreman Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881; State Water Resources Control Bd. Cases, supra, 136 Cal.App.4th at p. 749.) Nonetheless, there is substantial evidence the regional board considered housing issues prior to issuing the permit. The regional board had before it: the May 16, 2001 expression of concerns by the Building Industry Association; demographic analyses; a scholarly discussion of the effects of environmental regulation and housing availability; the federal Environmental Protection Agency analysis of the potential effects of restrictions of runoff on housing values; a technical analysis of runoff controls on housing design and planning; a National Association of Homebuilders guide for residential storm water runoff; an analysis of site design and watershed management in the context of residential subdivisions; the document entitled, "Storm Water Management in Washington" which discusses the technical requirements for small and large parcel developments; the regional board staff analysis; an analysis of the experiences in Virginia; and an article on additional housing costs resulting from storm water regulation. It is presumed the regional board examined these reports. ( City of Santa Cruz v. Local Agency Formation Com., supra, 76 Cal.App.3d at pp. 393-394; see Laurel Heights Improvement Assn. v. Regents of the University of California, supra, 47 Cal.3d at p. 393.) Thus, there is substantial evidence the regional board considered housing related issues before it issued the permit.

H. Improper Specifications Of Design Characteristics.

Plaintiffs argue that the regional board improperly specified the `"design or the particular manner'" as to how there was to be compliance with waste discharge requirements. Plaintiffs rely on Water Code section 13360, subdivision (a) which states: "No waste discharge requirement or other order of a regional board . . . issued under this division shall specify the design, location, type of construction, or particular manner in which compliance may be had with that requirement, order, or decree, and the person so ordered shall be permitted to comply with the order in any lawful manner." Plaintiffs contend two provisions of the permit violate Water Code section 13360, subdivision (a). First, plaintiffs argue that the permit improperly imposes a series of specific design criteria for `"Volumetric Treatment Control"' and `"Flow based Treatment Control'" best management practices. Second, plaintiffs challenge the requirement that some of them place and maintain trash receptacles at transit stops. Theses contentions have no merit. As held in City of Rancho Cucamonga v. Regional Water Quality Control Bd., supra, 135 Cal.App.4th at page 1389, the federal Clean Water Act authorizes National Pollutant Discharge Elimination Systems permits to set forth specific practices which will restrict polluted storm water runoff. ( 33 U.S.C. § 1342(a)(1), (p)(3)(B)(iii).) In City of Rancho Cucamonga, Associate Justice Barton C. Gaut explained: "Rancho Cucamonga's reliance on Water Code section 13360 is misplaced because that code section involves enforcement and implementation of state water quality law, (Wat. Code, § 13300 et seq.) not compliance with the Clean Water Act (Wat. Code, § 13370 et seq.) The federal law preempts the state law. ( Burbank, supra, 35 Cal.4th at p. 618.) The Regional Board must comply with federal law requiring detailed conditions for NPDES permits." ( City of Rancho Cucamonga v. Regional Water Quality Control Bd., supra, 135 Cal.App.4th at p. 1389.) Thus, nothing in state law in general or Water Code section 13360 in particular is violated by the specific pollution control requirements imposed on the permittees. We need no address the parties' remaining contentions concerning trash receptacles.

I. Hearing Related And Due Process Arguments 1. Overview of arguments

Plaintiffs contend that the December 13, 2001 hearing failed to comply with due process requirements in the following particulars: the notice did not comply with the requirements for an adjudicative hearing specified in Government Code section 11425.10, subdivision (a)(2); no sworn testimony was presented nor any documentary evidence admitted into evidence; the permittees were not given the opportunity to present evidence, cross-examine witnesses, or present a rebuttal in accordance with Government Code section 11425.10, subdivision (a) and California Code of Regulations, title 23, sections 648.4 and 648.5; the permit was not based on evidence offered at the hearing in violation of Government Code section 11425.50, subdivision (c) and California Code of Regulations, title 23, sections 648.2 and 648.3; technical and scientific matter was relied upon without complying with California Code of Regulations, title 23, section 648.2; and substantive changes were made to the permit after the hearing was concluded without giving the permittees an opportunity to comment on the amendments; most of the administrative record was never set forth at the hearing and was not identified until four months after the December 13, 2001 hearing.

2. Adequacy of the hearing notice

Plaintiffs contend that they did not receive an adequate notice that an adjudicative hearing would be conducted. As to state law requirements, plaintiffs argue the notice never states an adjudicative hearing was going to be held. Plaintiffs argue: Government Code section 11440.20, subdivision (a)¹³ requires that written notice be given of an adjudicatory hearing; the "Notice Of Public Hearing" did not comply with Government Code section 11425.10, subdivision (a)(2);¹⁴ the written notice does not state that what evidence would be relied upon; the notice does not state that there would a waiver of the formal regulatory hearing and evidentiary requirements as permitted by California Code of Regulations, title 23, section 648, subdivision (d);¹⁵ and the written notice did not indicate an informal hearing would be held as permitted by Government Code section 11445.20 et seq. and California Code of Regulations, title 23, section 648.7.¹⁶ We agree with the regional board that the December 13, 2001 hearing was an adjudicative, quasi-judicial, proceeding. ( City of Rancho Cucamonga v. Regional Water Quality Control Bd., supra, 135 Cal.App.4th at p. 1385; see Sommerfield v. Helmick (1997) 57 Cal.App.4th 315, 320.) As an adjudicative proceeding, a National Pollutant Discharge Elimination Systems permit hearing is exempt from the rulemaking procedures of the Administrative Procedures Act. (Gov. Code, § 11352, subd. (b);¹⁷ City of Rancho Cucamonga v. Regional Water Quality Control Bd., supra, 135 Cal.App.4th at p. 1385.) Thus, Government Code sections 11400 through 11475.70 and 11513 apply to regional board permit issuance proceedings. (Cal. Code Regs., tit. 23, § 648, subd. (b);¹⁸ City of Rancho Cucamonga v. Regional Water Quality Bd., supra, 135 Cal.App.4th at p. 1385.) The permittees received a document entitled "Notice of Public Hearing" sent by the regional board on September 27, 2001. The notice stated: "The hearing will start at 9:00 a.m. Regional Board's staff will present an overview of the proposed permit. Interested persons are invited to attend and to testify in front of the Regional Board. For the accuracy of the record, comments should also be submitted in writing. The Regional Board may ask questions of staff and persons who testify prior to making a decision on the adoption of the proposed." On October 11, 2001, the regional board sent a "Announcement of a Public Hearing and Transmittal of the Tentative Draft — County of Los Angeles Municipal Storm Water NPDES Permit" scheduling the hearing on the permit for November 29, 2001. The October 11, 2001 announcement stated: "Following the consideration of written comments and oral testimony, the Board may take action to adopt tentative Order No. 01-XXX during a public meeting on November 29, 2001. At its discretion, however, the Board may direct further investigation." The October 11, 2001 announcement: indicated a agenda would be posted on the regional board's website by November 19, 2001; stated the permittees were operating under a permit which expired on July 30, 2001; contained a summary of the principal changes to be made to the permit that expired on July 30, 2001; referred to an attached staff report; and requested comments to the tentative draft of the proposed permit. Attached to the announcement was the notice of hearing which: identified when and where the hearing would be held; explained where documents pertinent to the hearing could be located; and indicated interested persons could testify and submit comments in writing. The November 29, 2001 regional board meeting was continued to December 13, 2001 after an unsuccessful effort at achieving settlement through mediation. On November 30, 2001, the regional board gave notice on its website of the December 13, 2001 hearing. The regional board's meeting agenda posted on its website on December 13, 2001, listed as item No. 10 under the heading "STORM WATER — NPDES PERMIT RENEWAL" (original bold and underscore): "Consideration of a proposed renewal of the municipal storm water permit for the County of Los Angeles and incorporated cities therein, except the City of Long Beach. (After a public hearing, the Board will consider renewal of the existing municipal permit for the County and 83 cities.) [¶] [Xavier Swamikannu, 576-6654] . . . Board [¶] Action" (Original italics.) Above the listing of the agenda items, the following appears, "All Board files pertaining to the items on this agenda are hereby made a part of the record submitted to the [regional board] by staff for its consideration prior to action on the related items." The regional board adopted the permit at the December 13, 2001 hearing. Plaintiffs through their counsel appeared at the December 13, 2001 hearing. There is no merit to the state law inadequate notice contention. There was no requirement that the notice state an adjudicative hearing would be held. As a matter of law, an adjudicative hearing would be held in connection with any renewal or issuance of a National Pollutant Discharge Elimination Systems permit. ( City of Rancho Cucamonga v. Regional Water Quality Control Bd., supra, 135 Cal.App.4th at p. 1385.) Further, the notices complied with the requirements imposed by California Code of Regulations, title 23, section 647.2, subdivisions (a) through (c) and (e).¹⁹ Plaintiffs contend that the foregoing notice was deficient because it violates federal and state laws. Plaintiffs argue that the notice fails to comply with federal law. Plaintiffs rely on the following provisions of 40 Code of Federal Regulations part 124.8 (2001) which states: "(a) A fact sheet shall be prepared for every draft permit. . . . The fact sheet shall briefly set forth the principal facts and the significant factual, legal, methodological and policy questions considered in preparing the draft permit. The Director shall send this fact sheet to the applicant and, on request, to any other person. [¶] (b) The fact sheet shall include, when applicable: [¶] . . . (6) A description of the procedures for reaching a final decision on the draft permit including: [¶] . . . (ii) Procedures for requesting a hearing and the nature of that hearing. . . ." We agree with the Attorney General that these provisions doe not apply to a regional board National Pollutant Discharge Elimination Systems permit renewal and issuance proceedings. Finally, in terms of the notice issues, plaintiffs argue the permittees' due process rights were violated. The state and federal due process provisions require that "some form of notice" be given. ( Sommerfield v. Helmick, supra, 57 Cal.App.4th at p. 320; B.C. Cotton, Inc. v. Voss (1995) 33 Cal.App.4th 929, 954.) The notices that were provided complied with all due process requirements applicable to an adjudicative hearing.

13 Government Code section 11440.20, subdivision (a) states: "Service of a writing on, or giving of a notice to, a person in a procedure provided in this chapter is subject to the following provisions: [¶] (a) The writing or notice shall be delivered personally or sent by mail or other means to the person at the person's last known address or, if the person is a party with an attorney or other authorized representative of record in the proceeding, to the party's attorney or other authorized representative. If a party is required by statute or regulation to maintain an address with an agency, the party's last known address is the address maintained with the agency."

14 Government Code section 11425.10, subdivision (a)(2) states: "(a) The governing procedure by which an agency conducts an adjudicative proceeding is subject to all of the following requirements: [¶] . . . (2) The agency shall make available to the person to which the agency action is directed a copy of the governing procedure, including a statement whether Chapter 5 (commencing with Section 11500) is applicable to the proceeding."

15 California Code of Regulations title 23, section 648, subdivision (d) states: "(d) Waiver of Nonstatutory Requirements. The presiding officer may waive any requirements in these regulations pertaining to the conduct of adjudicative proceedings including but not limited to the introduction of evidence, the order of proceeding, the examination or cross-examination of witnesses, and the presentation of argument, so long as those requirements are not mandated by state or federal statute or by the state or federal constitutions."

16 California Code of Regulations, title 23, section 648.7 states: "Unless the hearing notice specifies otherwise, the presiding officer shall have the discretion to determine whether a matter will be heard pursuant to the informal hearing procedures set forth in article 10, commencing with section 11445.20, of chapter 4.5 of the Administrative Procedure Act. [¶] Among the factors that should be considered in making this determination are: [¶] The number of parties, [¶] The number and nature of the written comments received, [¶] The number of interested persons wishing to present oral comments at the hearing, [¶] The complexity and significance of the issues involved, and [¶] The need to create a record in the matter. [¶] An objection by a party, either in writing or at the time of the hearing, to the decision to hold an informal hearing shall be resolved by the presiding officer before going ahead under the informal procedure. Failure to make a timely objection to the use of informal hearing procedures before those procedures are used will constitute consent to an informal hearing. A matter shall not be heard pursuant to an informal hearing procedure over timely objection by the person to whom agency action is directed unless an informal hearing is authorized under subdivision (a), (b), or (d) of section 11445.20 of the Government Code."

17 Government Code section 11352, subdivision (b) states: "The following actions are not subject to this chapter: [¶] (b) The issuance . . . of waste discharge requirements and permits pursuant to Sections 13263 and 13377 of the Water Code. . . ."

18 California Code of Regulations, title 23, section 648, subdivision (b) states: "(b) Incorporation of Applicable Statutes. Except as otherwise provided, all adjudicative proceedings before the State Board, the Regional Boards, or hearing officers or panels appointed by any of those Boards shall be governed by these regulations, chapter 4.5 of the Administrative Procedure Act (commencing with section 11400 of the Government Code), sections 801-805 of the Evidence Code, and section 11513 of the Government Code."

19 California Code of Regulations, title 23, section 647.2, subdivisions (a) through (c) and (e) states: "(a) Purpose. Government Code Section 11125 requires state agencies to provide notice at least one week in advance of any meeting to any person who requests such notice in writing except that emergency meetings may be held with less than one week's notice when such meetings are necessary to discuss unforeseen emergency conditions as defined by published rule of the agency. The purpose of this section is to establish procedures for compliance with Government Code Section 11125 by the State Board and the Regional Boards. [¶] (b) Contents of Meeting Notice. The notice for all meetings of the State Board and Regional Boards shall specify the date, time and location of the meeting and include an agenda listing all items to be considered. The agenda shall include a description of each item, including any proposed action to be taken. [¶] (c) Time of Notice. Notice shall be given at least one week in advance of the meeting. When the notice is mailed, it shall be placed in the mail at least eight days in advance of the meeting. [¶] (e) Distribution. Notice shall be given to all persons directly affected by proceedings on the agenda and to all persons who request in writing such notice. Notice shall be given to any person known to be interested in proceedings on the agenda."

3. Adequacy of the hearing

Plaintiffs contend the proceedings before the regional board were not conducted as a proper adjudicative hearing. Plaintiffs argue they were denied the opportunity to present or rebut evidence. Government Code section 11425.10, subdivision (a)(1) states in part: "(a) The governing procedure by which an agency conducts an adjudicative proceeding is subject to all of the following requirements: [¶] (1) The agency shall give the person to which the agency action is directed notice and an opportunity to be heard, including the opportunity to present and rebut evidence." The mode of presentation of evidence at adjudicatory hearing is spelled out in California Code of Regulations, title 23, sections 648.4, subdivision (a) and 648.5.²⁰ Because there was no evidence produced at the hearing, the permittees argue the findings were inadequate. ( English v. City of Long Beach (1950) 35 Cal.2d 155, 158; Southern Cal. Edison Co. v. State Water Resources Control Bd. (1981) 116 Cal.App.3d 751, 760.) We have read the transcript of the hearing. Those who wished to address the regional board were placed under oath. Presentations were made by the county, the City of Los Angeles, the Coalition for Practical Regulation, and a council representing the interests of various cities. Other individuals were permitted to present their views. The permittees' counsel made no request to call witnesses or objected to the manner in which the hearing proceeded as is argued on appeal. The permittees' counsel were given an opportunity to be heard. Further, extensive written comments were made by the permittees and their counsel. In light of the extensive notice given to them, if the permittees' counsel had any objections akin to those raised on appeal, they should have asserted them. No due process, statutory, or regulatory violation occurred. ( Mohilef v. Janovici (1996) 51 Cal.App.4th 267, 285-287; Cal. Code Regs., tit. 23, § 648, subd. (d).)

20 California Code of Regulations, title 23, section 648.4, subdivision (a) provides: (a) It is the policy of the State and Regional Boards to discourage the introduction of surprise testimony and exhibits. [¶] (b) The hearing notice may require that all parties intending to present evidence at a hearing shall submit the following information to the Board prior to the hearing: the name of each witness whom the party intends to call at the hearing, the subject of each witness' proposed testimony, the estimated time required by the witness to present direct testimony, and the qualifications of each expert witness. The required information shall be submitted in accordance with the procedure specified in the hearing notice. [¶] (c) The hearing notice may require that direct testimony be submitted in writing prior to the hearing. Copies of written testimony and exhibits shall be submitted to the Board and to other parties designated by the Board in accordance with provisions of the hearing notice or other written instructions provided by the Board. The hearing notice may require multiple copies of written testimony and other exhibits for use by the Board and Board staff. Copies of general vicinity maps or large, nontechnical photographs generally will not be required to be submitted prior to the hearing. [¶] (d) Any witness providing written testimony shall appear at the hearing and affirm that the written testimony is true and correct. Written testimony shall not be read into the record unless allowed by the presiding officer. [¶] (e) Where any of the provisions of this section have not been complied with, the presiding officer may refuse to admit the proposed testimony or the proposed exhibit into evidence, and shall refuse to do so where there is a showing of prejudice to any party or the Board. This rule may be modified where a party demonstrates that compliance would create severe hardship. [¶] (f) Rebuttal testimony generally will not be required to be submitted in writing, nor will rebuttal testimony and exhibits be required to be submitted prior to the start of the hearing." California Code of Regulations, title 23, section 648.5 provides: "a) Adjudicative proceedings shall be conducted in a manner as the Board deems most suitable to the particular case with a view toward securing relevant information expeditiously without unnecessary delay and expense to the parties and to the Board. Adjudicative proceedings generally will be conducted in the following order except that the chairperson or presiding officer may modify the order for good cause: [¶] (1) An opening statement by the chairperson, presiding member, or hearing officer, summarizing the subject matter and purpose of the hearing; [¶] (2) Identification of all persons wishing to participate in the hearing; [¶] (3) Administration of oath to persons who intend to testify; [¶] (4) Presentation of any exhibits by staff of the State or Regional Board who are assisting the Board or presiding officer; [¶] (5) Presentation of evidence by the parties; [¶] (6) Cross-examination of parties' witnesses by other parties and by Board staff assisting the Board or presiding officer with the hearing; [¶] (7) Any permitted redirect and recross-examination; [¶] (b) Questions from Board members or Board counsel to any party or witness, and procedural motions by any party shall be in order at any time. Redirect and recross-examination may be permitted. [¶] (c) If the Board or the presiding officer has determined that policy statements may be presented during a particular adjudicative proceeding, the presiding officer shall determine an appropriate time for presentation of policy statements. [¶] (d) After conclusion of the presentation of evidence, all parties appearing at the hearing may be allowed to present a closing statement."

4. Belated findings

Plaintiffs contend that untimely findings were made by the regional board. The changes made without an opportunity and comment were: an amendment to the total daily maximum loads for trash; the insertion of a requirement that complaints referred by the regional board be investigated within one business day; and significant changes to the inspection program. We agree with the Attorney General that the modifications in the permit were not of such gravity that a due process or other violation occurred. The final permit was a logical outgrowth of the draft permit. Hence, there was no violation of any right to notice or a hearing. (See Natural Resources Defense Council v. U.S.E.P.A. (9th Cir. 2002) 279 F.3d 1180, 1186 [applying federal notice and hearing provisions inn the administrative context]; Center for Biological Diversity v. Bureau of Land Management (N.D. Cal. 2006) 422 F.Supp.2d 1115, 1155-1156 [same].)

J. Inspection Requirements

Plaintiffs argue the inspection requirements imposed in the permit are unlawful. The permit requires the permittees to inspect to insure there are no illicit discharges into the storm sewer system and critical sources of pollutants in runoff. We agree with the intervenors — no statute or regulation prohibited the regional board from imposing the inspection requirements. Further, there is federal regulatory authority that required the regional board consider imposing the inspection requirements. ( 40 C.F.R. 122.26(d), (g) (2000).) This contention has no merit.

K. Propriety Of The Regional Board Considering The Administrative Record In The Long Beach Case

Plaintiffs contend that the regional board should not have considered the administrative record in proceedings involving the 1996 issuance of a National Pollutant Discharge Elimination System permit to the City of Long Beach. According to plaintiffs, the administrative record was prepared in connection with the challenge by the City of Long Beach to the National Pollutant Discharge Elimination System Permit issued in 1996. Plaintiffs assert most of the administrative record in the Long Beach case is unrelated to the present case. Plaintiffs argue that consideration of the Long Beach records: are surprise evidence received in violation of title 23, California Code of Regulations, section 648.4, subdivision (a); violated the requirement that the regional board's presentation of exhibits be followed by the parties' presentation of evidence as required by title 23, California Code of Regulations, section 648.5, subdivisions (a)(4) and (5); and the process for admitting public records by reference pursuant to California Code of Regulations, section 648.3 was violated. We disagree. The regional board certified the administrative record as including documents relevant to a National Pollutant Discharge Elimination System permit issued for the City of Long Beach. It is presumed the regional board considered the documents pertinent to the Long Beach National Pollutant Discharge Elimination System permit. ( Mason v. Office of Admin. Hearings (2001) 89 Cal.App.4th 1119, 1131; see Bar MK Ranches v. Yuetter (10th Cir. 1993) 994 F.2d 735, 740.) Admissibility of evidence is controlled by Government Code sections 11400 and 11513, subdivision (c). Government Code section 11513, subdivision (c) states: "The hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions." What is unclear is the standard of judicial review of the regional board's decision to consider the Long Beach National Pollutant Discharge Elimination System permit. It would appear the standard of judicial review is that set forth in Code of Civil Procedure section 1094.5, subdivision (b) whether: the regional board's evidentiary ruling was in excess of jurisdiction; there was a fair trial; or there was any prejudicial abuse of discretion. Insofar as we are examining the trial court's ruling allowing the Long Beach evidence to be part of the record, as with any relevancy issue, we apply an abuse of discretion standard of review. ( People v. Panah (2005) 35 Cal.4th 395, 474; People v. Kipp (2001) 26 Cal.4th 1100, 1123.) Under any standard of review, the Long Beach evidence is relevant. The actions taken in imposing runoff conditions on the second largest city in the county are pertinent to what conditions to impose on the remainder of the county. Finally, there is insufficient evidence to support plaintiffs' surprise contention. There is no evidence that any of the permittees' attorneys were prohibited from examining the entire administrative record prior to the December 13, 2001 hearing.

L. The Trial Court Did Not Abuse Its Discretion In Refusing To Augment The Record

Plaintiffs contend the trial court improperly refused to augment the record to include petitions they had filed with state board. This issue is in essence an issue of relevance which is reviewed for an abuse of discretion. ( Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 573, fn. 3; People v. Panah, supra, 35 Cal.4th at p. 474; People v. Kipp, supra, 26 Cal.4th at p. 1123.) The documents at issue were all prepared after the regional board issued the permit. Without abusing its discretion, the trial court could conclude that the post permit issuance papers were irrelevant. ( Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 250, fn. 7; People v. Rowland (1992) 4 Cal.4th 238, 268.)

V. DISPOSITION

The judgment is affirmed. Defendants, California Regional Water Quality Control Board, Los Angeles Region and the State Water Resources Board, are to recover their costs incurred on appeal jointly and severally from plaintiffs, the cities of Arcadia, Artesia, Bellflower, Beverly Hills, Carson, Cerritos, Claremont, Commerce, Covina, Diamond Bar, Downey, Gardena, Hawaiian Gardens, Industry, Irwindale, La Mirada, Lawndale, Monrovia, Norwalk, Paramount, Pico Rivera, Rancho Palos Verdes, Rosemead, Santa Clarita, Santa Fe Springs, Signal Hill, South Pasadena, Torrance, Vernon, Walnut, West Covina, Westlake Village, and Whittier, and the County of Los Angeles, Los Angeles County Flood Control District, Building Industry Legal Defense Fund, and the Construction Industry Coalition on Water Quality.

Armstrong, J., and Kriegler, J., concurred.

Petitions for a rehearing were denied November 6, 2006, and the opinion was modified to read as printed above. Appellants' petition for review by the Supreme Court was denied February 14, 2007, S148749.