The California Court of Appeal recently issued the first published decision that adjudicates a municipal stormwater test claim on the merits. In State Department of Finance et al. v. Commission on State Mandates, the Court of Appeal held that municipal stormwater requirements in a Los Angeles County National Pollutant Discharge Elimination System ("NPDES") permit to install trash receptacles at transit stops and to conduct inspections of commercial, industrial, and construction sites are not unfunded state mandates as a matter of law. The Los Angeles County permittees, therefore, are not entitled to reimbursement for implementing these specific requirements under the California Constitution, article XIII B, section 6. The Court of Appeal largely relied on the "highly flexible" "maximum extent practicable" standard of the Clean Water Act in ruling that these requirements are federal mandates, but limited its ruling to the specific mandates at issue. As a result, public agencies that own and operate municipal separate storm sewer systems in California may still seek subvention for other NPDES permits with requirements that exceed the "maximum extent practicable" standard.
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