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Cal. Building Industry Assn. v. State Water Resources Control Bd.

Filed 5/7/18 IN THE SUPREME COURT OF CALIFORNIA CALIFORNIA BUILDING INDUSTRY ) ASSOCIATION, ) ) Plaintiff and Appellant, ) ) S226753 v. ) ) Ct.App. 1/2 A137680 STATE WATER RESOURCES ) CONTROL BOARD, ) ) San Francisco City & County Defendant and Respondent. ) Super. Ct. No. CGC-11-516510 ____________________________________) Here, we address three questions: (1) whether a two-member vote by the State Water Resources Control Board (Board), approving a permit fee schedule under Water Code1 section 13260, effectively adopted the fee schedule; (2) whether the Board violated requirements of subdivision (d)(1)(B) or (f)(1) of section 13260 in setting the permit fees; and (3) whether the Board’s adoption of the fee schedule violated constitutional restrictions on regulatory fees under article XIII A of the California Constitution. We hold that the fee schedule was properly adopted and violated neither the statutes nor the state Constitution. We affirm the judgment of the Court of Appeal, which reached the same conclusions. 1 All unspecified statutory references are to the Water Code. 1 I. BACKGROUND Under California law, primary responsibility for the coordination and control of water quality belongs to the Board and nine regional water quality control boards. (§ 13001; see also City of Burbank v. State Water Resources Control Bd. (2005) 35 Cal.4th 613, 619.) The Board establishes statewide policy, while the regional boards adopt water quality control plans and issue permits governing the discharge of waste.2 (Department of Finance v. Commission on State Mandates (2016) 1 Cal.5th 749, 755-756.) To finance the permit programs, the Legislature authorized the imposition of a fee for issuance of a permit. (§ 13260, subd. (d)(1)(A).) The Board establishes the fee schedule (§ 13260, subds. (d)(1)(A), (f)(1)),3 and must set “total revenue collected . . . through annual fees . . . at an amount equal to the revenue levels set forth in the Budget Act for this activity.” (§ 13260, subd. (f)(1).) The total amount of annual fees is limited to an “amount necessary to recover costs incurred in connection with the issuance, administration, reviewing, monitoring, and enforcement” of waste discharge permits. (§ 13260, subd. (d)(1)(B).) All fees are deposited in the Waste Discharge Permit Fund (Permit Fund). Upon appropriation by the Legislature, the Board may expend Permit Fund money solely 2 Every person discharging or proposing to discharge waste that could affect the quality of state waters must file a waste discharge report with the appropriate regional board. (§ 13260, subd. (a)(1).) The regional board then “prescribe[s] requirements as to the nature” of the discharge. (§ 13263, subd. (a).) The regional board’s prescription of requirements is, in essence, a permit to discharge waste into state waters subject to conditions set by the regional board. (Building Industry Assn. of San Diego County v. State Water Resources Control Bd. (2004) 124 Cal.App.4th 866, 875.) 3 The Board must annually adopt a fee schedule. (§ 13260, subd. (f)(1).) The schedule is found at title 23, section 2200 of the California Code of Regulations. 2 for the purpose of …
Original document
Source: California Supreme Court