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California Building Industry Ass'n v. State Water Resources Control Board

ELR Citation: 45 ELR 20080
Nos. A137680, (Cal. Ct. App. 1st Dist., 04/20/2015)

A California appellate court held that the state's water resources board did not violate state law when it voted 2-1 to increase water quality permit fees for the 2011-2012 fiscal year. When the board voted for the increase, two of the seats were vacant. A building association challenged the increase, arguing that Cal. Water Code §183 required the fees to be approved by a majority of the 5-person board. But §181, not §183, applies to the board's adoption of the fee schedule. Here, the board complied with §181, as it only requires a majority of the board’s quorum to approve the fee. The association also argued that the board violated §13260 because the fee imposed on the dischargers in the storm water program—one of eight program areas in the waste discharge permit program—exceeded the cost of regulating this particular program. But §13260 requires that the total fees collected from all waste dischargers must equal the costs of regulating the entire waste discharge permit program. Here, the industry failed to make a prima facie case that the charges surpassed the costs of regulating the program or that allocation of the fees was unfair or unreasonable.