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“Stormwater Runs Through It” – Stormwater as the New Epicenter of Clean Water Act Regulatory Disputes

Stormwater, increasingly, is becoming the new battleground in Clean Water Act permitting disputes and related litigation and enforcement. Indeed, just this past week on December 3 and 4, 2012, the U.S. Supreme Court heard two different stormwater cases from the Ninth Circuit U.S. Court of Appeals, one concerning whether discharges from logging road culverts constitute point source discharges, and the other matter regarding whether municipal stormwater discharges from channelized sections of a river into downstream unchannelized portions constitute a discharge. These cases, however, are just the tip of the iceberg.

In Decker v. Northwest Environment Defense Center, the Supreme Court is reviewing whether EPA permissibly exempted natural runoff from logging roads, including the ditches, culverts, and conduits specifically designed to carry stormwater runoff away from those roads, under the EPA’s Silviculture Rule at 40 CFR 122.27. In 2011, the Ninth Circuit disagreed with the EPA and reversed the decades-old agency interpretation and held that logging roads are a form of point source pollution from an industrial activity, thus subject to the stormwater permitting regime. The EPA threw a curveball one business day before the Supreme Court hearing and issued a new rule (published on December 7, 2012, at 77 Fed. Reg. 72970) that, instead of focusing on whether the discharge is a point source, exempts logging roads from stormwater permitting on the basis that the discharges are not “associated with industrial activity.” Oral argument before the Court included significant discussion about whether EPA’s new rulemaking mooted the dispute.

In Los Angeles County Flood Control District v. Natural Resources Defense Council, the Court is focused on two relatively perplexing issues with the Los Angeles County stormwater MS4 system resolved in favor of environmental groups before the Ninth Circuit in 2011. The first issue deals with channelized portions of the Los Angeles River (think the drag race scene from the movie “Grease”) and whether a “discharge” occurs under the Clean Water Act when pollutants pass through the river’s channelized portion downstream to unchannelized portions of the river. The second issue looks at compliance with effluent limits and centers on the municipality’s in-stream monitoring requirement under its permit and whether the results are appropriate evidence of permit violations and noncompliance even though the receiving body includes effluent not only from Los Angeles, but also from upstream dischargers. In other words, whether the municipality can be held responsible for water quality violations regardless of where the contaminants entered the receiving stream. Initial observations following oral argument suggest that the Supreme Court believes the Ninth Circuit misunderstood that the channelized portions were actually part of the rivers and not part of the Los Angeles MS4 system (hence no discharge issue), but questions remained regarding permit compliance and enforcement aspects associated with the monitoring requirements.

Beyond these two cases, stormwater is also the center of a recent dispute in federal court in Virginia where EPA has been sued for regulating stormwater “flow” as a surrogate for other pollutants, namely sediment. A variety of water management groups and industrial associations have intervened and joined Fairfax County and the Virginia Department of Transportation in their lawsuit against EPA challenging the agency’s efforts to regulate “flow.” EPA Region 3 developed a total maximum daily load (TMDL) requiring nearly a 50% reduction in stormwater flow from a one-year, 24-hour storm event as a surrogate to control sediment in the discharge. The case is similar to a recent one in EPA Region 7 involving a TMDL where the agency also used flow as a surrogate for an unidentified pollutant.

EPA and states have also begun issuing stormwater permits that set first-time numeric effluent limitations in a variety of industrial and construction stormwater permits. Currently pending in the Seventh Circuit Court of Appeals, for example, is a challenge to EPA’s 2009 effluent limitation guidelines for the construction sector, including a numeric effluent limit for turbidity as a proxy for water clarity.

Also in the construction sector, EPA is under a court-ordered deadline to issue a “Post-Construction Stormwater Rule” by June 2013 at newly developed and redeveloped sites. And, of course, EPA finalized their general construction stormwater permit earlier this year.

The regulatory focus on stormwater permitting compliments the EPA’s enforcement activities including its national emphasis on nutrient loading from stormwater runoff as part of the agency’s 2011-2013 National Enforcement Initiatives. In August 2012, for example, two construction companies paid a $270,000 civil penalty for stormwater violations at 17 different construction sites.

As the Clean Water Act celebrates its 40th anniversary this year, it should be no surprise that stormwater disputes, although perhaps overlooked in the past or deemed too challenging to address, are now among the most pressing. For persons interested in learning more about the status of these topics in more detail, Spencer Fane’s Environmental Practice Group (with presenters from the firm’s Denver, Kansas City, and St. Louis offices) hosted a complimentary 60-minute webinar on February 12, 2013, entitled “Navigating Uncertain Waters: Regulatory Developments in Clean Water Act Enforcement, Stormwater Permitting & Fracking.”