Municipal separate storm sewer systems: Is compliance with state water quality standards only a pipe dream?

In 1987, Congress added section 402(p) to the Clean Water Act, which addresses point source storm water(1) pollution, including discharges from municipal separate storm sewer systems (MS4s). The MS4 program, regulations for which were promulgated by EPA in 1990 and 1999, is just beginning to show some progress in improving storm water quality. However, EPA's program has not required MS4s to meet measurable standards or goals, or ensured compliance with water quality standards. In 1999, the Ninth Circuit held, in Defenders of Wildlife v. Browner, that the Clean Water Act does not require MS4 permits to ensure compliance with state water quality standards. That holding, if followed in other circuits, could stunt the progress of the MS4 program. This Chapter suggests that the weaknesses in the MS4 program--particularly the lack of storm water quality monitoring and characterization and lack of required measurable standards or goals--must be addressed for the program to be ultimately effective. Finally, this Chapter concludes that EPA should require MS4s to comply with water quality standards, a goal that can be more effectively achieved by requiring minimum performance standards and by incorporating total maximum daily loads (TMDLs) for water quality-limited waters into MS4 permits.

I. INTRODUCTION

Storm water runoff is a leading cause of water quality impairment in many water bodies of the United States.(2) In 1998, the Environmental Protection Agency (EPA) reported that, of the waterways assessed by the states, urban runoff, or municipal separate storm sewer system (MS4) discharges, are a significant pollutant source affecting impaired waterways.(3) There are many examples across the nation of the severity of the problem. In the Pacific Northwest, endangered salmon are adversely affected by sediment, nutrients, and toxic chemicals found in urban storm water.(4) In 1998, over 7000 days of beach closures nationwide occurred due to poor water quality, for which the main culprits were elevated bacteria levels and specific pollutants that reached waters from sewage spills and urban storm water,(5) In 1997, excessive nutrient pollution in storm water runoff caused a toxic algae bloom in Maryland that left at least thirty people ill and caused fish kills and contamination resulting in $43 million in fishery losses.(6) In spite of these occurrences, the 1999 Ninth Circuit ruling in Defenders of Wildlife v. Browner(7) that MS4 permits need not require more stringent limitations necessary to comply with state water quality standards(8)--if followed in other circuits--may allow MS4 discharges to continue to threaten the health of the nation's waterways.

Storm water is a threat to water quality because as rainfall or snowmelt moves over the land it picks up numerous natural and human-made pollutants that are discharged directly into waterways.(9) Urbanization multiplies the adverse effects of storm water. Development creates large impervious areas--such as rooftops, roads, parking lots, and sidewalks--which change the hydrologic cycle by preventing storm water from infiltrating the soft.(10) Reduced infiltration impedes the natural filtering and removal of pollutants and the recharge of groundwater, which results in storm water flows that are higher in speed, volume, and temperature.(11) A great variety and number of pollutants reach waterways through urban storm water and as population density increases, so does the concentration of pollutants.(12)

These adverse water quality and quantity effects combine to increase pollutant loads, degrade or destroy aquatic and riparian habitat, and reduce the number and diversity of fish and macroinvertebrate species.(13) Storm water discharge threatens human health by increasing pollutant loads, such as bacteria, in water supplies and recreational areas, and degrades aesthetic conditions by discharging floatable trash, oil, and grease that cause surface scum and odor.(14) The effects of polluted urban storm water are preventing many waterways from achieving acceptable levels of water quality--not the least of which is the federal Clean Water Act's (CWA)(15) "fishable/swimmable" goal.(16)

The CWA seeks "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters" by controlling and abating discharges of pollutants into the waters of the United States.(17) The National Pollution Discharge Elimination System (NPDES), under section 402 of the CWA, requires entities seeking to discharge pollutants into a waterway to obtain an NPDES permit, subject to conditions set by the permitting authority.(18) The CWA also requires each state to establish water quality standards for its waterways.(19) Generally, NPDES permits must contain additional conditions designed to meet those standards if the applicable NPDES technology standard is not reducing the discharge of pollutants to acceptable levels.(20) Therefore, the CWA requires an MS4, as a discharging entity, to obtain and comply with an NPDES permit.

MS4s capture and discharge storm water from outfalls into the waters of the United States.(21) These outfalls are considered point sources under the CWA.(22) Due to the significant adverse effects of storm water on water quality, MS4 discharges are a significant target for pollution control.(23) However, MS4 discharges are not as amenable to traditional pollution control measures as typically targeted water pollution sources, such as industrial discharges.(24) Storm water flows are intermittent and unpredictable because they fluctuate depending upon frequency and duration of precipitation.(25) Further, MS4s generally contain numerous outfalls (so designed to minimize flooding), the location of which may not be completely known to the municipality.(26) These problems can make sampling and measuring the water quality impact of storm water difficult and in some cases, impractical.(27) Moreover, local governments' limited financial resources can make traditional end-of-pipe treatment infeasible for many municipalities.(28) Despite these difficulties, MS4s require regulation to preserve and improve the quality of the nation's waters.

In part to specifically address the regulation of storm water discharges, Congress passed the Water Quality Act of 1987.(29) The Act extensively amended the CWA, including the addition of section 402(p), which addresses storm water discharges.(30) The amendment directs EPA to proceed in two phases under the NPDES program.(31) The Phase I regulations, promulgated in 1990, require permits for storm water discharges from industrial sources, construction disturbing over five acres, and large and medium MS4s.(32) In 1999, the Phase II regulations were promulgated, adding small construction sites and small MS4s into the fold of regulated storm water discharges.(33)

EPA attempted to create a flexible program to address MS4 pollution because of the inherent difficulty in controlling storm water and the sensitive nature of regulating municipalities.(34) The regulations outline a program that is substantially different from the other point source water pollution control programs under the CWA.(35) The MS4 storm water program uses a "performance-based" regulatory approach instead of the traditional "technology-based" approach used in end-of-pipe treatment.(36) Whereas a strictly "technology-based" approach focuses on attaining set effluent limits through the use of an end-of-pipe technology control, the "performance-based" approach focuses on the implementation of an overall plan that employs various methods of pollution control.(37) Municipalities are required to develop storm water management programs (SWMPs) that include best management practices (BMPs)(38) for reducing storm water pollution; these plans become permit conditions.(39) This approach allows for municipal flexibility in tailoring programs for particular circumstances.(40)

In 1999, environmental groups brought the first lawsuit challenging the content of an MS4 permit. In Defenders of Wildlife v. Browner, Defenders of Wildlife sought review of an EPA decision to issue MS4 NPDES permits for five municipalities in Arizona.(41) Defenders of Wildlife argued that EPA violated section 402(p) of the CWA because the permits did not contain conditions requiring strict compliance with state water quality standards through the use of numeric effluent limits.(42) The Ninth Circuit disagreed, determining that section 402(p)(3) does not require strict compliance for MS4 permits.(43) However, the court determined that EPA, in its discretion, may require compliance with state water quality standards and can determine the level of, and method for, compliance.(44)

There is limited information on whether EPA's approach to MS4 regulation is actually resulting in storm water discharges that comply with state water quality standards.(45) The studies that have been conducted focus on particular BMPs' ability to remove pollutants or control storm water volume and velocity.(46) These studies indicate that the implementation of appropriate BMPs do result in improvements in storm water quality on a site-specific basis, but information about watershed-scale improvement is lacking.(47) Further, EPA's flexible regulatory approach provides little guidance or standardization for monitoring BMP effectiveness, nor has EPA required MS4s to meet measurable goals.(48)

This Chapter examines the MS4 storm water program, focusing on the potential for attainment of state water quality standards. Part II briefly describes the history of storm water regulation under the CWA, which resulted in Congress amending the CWA to include section 402(p). Part III summarizes EPA's Phase I and II regulations and the structure of the MS4 storm water program. Part IV examines Natural Resources Defense Council v. Environmental Protection Agency(49) and Defenders of Wildlife v. Browner, two Ninth Circuit opinions that have supported EPA's decision not to require MS4s to meet measurable minimum standards. Part V discusses the existing information on the effectiveness of BMPs to meet state water quality standards. This Chapter concludes that the MS4 storm water program has made a slow, but encouraging beginning; however, if MS4 attainment of water quality standards is a goal of the states, future permits should require attainment of minimum standards and goals by which SWMP effectiveness can be measured and enforced, such as integrating total maximum daily loads (TMDLs) into MS4 permits.

II. HISTORY OF THE STORM WATER PROGRAM

A. 1972-1987: Lawsuits and Proposed Rules Without Results

1. Clean Water Act Gets Teeth

In 1972, Congress significantly amended the Federal Water Pollution Control Act(50)--commonly referred to as the Clean Water Act (CWA)--"to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."(51) Among the most important additions was the NPDES program, which requires permits for discharges of pollutants into navigable waters from point sources.(52) Under this program, entities seeking to discharge pollutants into a waterway must obtain an NPDES permit.(53) Permits contain conditions set by the permitting authority, including a technology-based standard that establishes limitations on the amount of pollutants that may be discharged.(54) Once the NPDES permit is issued, the discharging entity satisfies the requirements of the CWA as long as the permit conditions are not violated.(55)

The CWA also requires states to establish water quality standards for their waterways.(56) These standards can be expressed as narrative conditions or numeric effluent limits for particular pollutants.(57) Under section 303 of the CWA, the state must establish TMDLs for water bodies that fail to meet water quality standards (water quality-limited waters).(58) TMDLs are estimated gross amounts of pollutants that a water body can absorb without causing a water quality standard violation.(59) A TMDL is established by first estimating how much of a particular pollutant the waterway can absorb.(60) Second, the state must apportion the TMDL among the pollution sources in the TMDL area.(61) This process must take into account both point and nonpoint sources of pollutants.(62) Also, a portion of the TMDL must be reserved for a margin of safety, to account for any gaps in knowledge and seasonal variances.(63) Typically, NPDES permits must contain more stringent limitations than the applicable technology-based standard if the discharge is contributing to a violation of state water quality standards; these limitations are based upon TMDLs for water quality-limited waters.(64) Thus, the water quality standards serve as a "safety net," so that the CWA's fishable/swimmable goals can be met even if those goals are beyond the reach of established technology requirements.(65)

2. NPDES and MS4 s

Although storm water runoff begins as a nonpoint source,(66) the collection and discharge of storm water from outfalls into water bodies by MS4s constitutes a discharge from a point source.(67) Since the inception of the program, MS4 outfalls have been subject to the NPDES program, but only after several lawsuits and congressional intervention did MS4s widely begin to obtain NPDES permits.

In 1973, EPA promulgated regulations exempting from the NPDES program MS4 discharges that did not contain industrial or commercial contamination.(68) The D.C. Circuit held in 1977 that EPA could not exempt classes of point sources from the NPDES permit requirement.(69) EPA argued that it should be able to create exemptions because it would be infeasible to establish national effluent limitations for this type of discharge.(70) The court rejected that argument, holding that the NPDES permit program gave EPA the flexibility to issue general or area permits and establish permit conditions that were not strict numeric effluent limits.(71) The court made it clear that EPA was required to regulate MS4 discharges under the NPDES permit program.(72)

In 1980, EPA's first attempt at promulgating regulations for storm water discharges was challenged by both industry and environmental groups.(73) In a proposed rule that reflected a settlement with industry groups, EPA agreed to require permits only for storm sewers discharging effluent contaminated with specific pollutants.(74) Practically ignoring Costle, EPA had agreed to exempt certain storm water point sources from regulation.(75) However, in its final 1984 rule, EPA decided not to narrow the class of covered discharges; but it retained the two-tiered regulatory approach for MS4s, proposed in 1982, that did not require MS4s to control the pollution in their discharges.(76) Again, industry and environmental groups challenged the regulations, but in light of the recently enacted Water Quality Act of 1987, the D.C. Circuit vacated and remanded the regulations upon a request by EPA.(77)

B. The Water Quality Act of 1987

Congressional concern over the serious adverse effects of storm water discharges on water quality and a general frustration with EPA's inability to promulgate satisfactory regulations prompted the addition, in 1987, of section 402(p) to the CWA.(78) Section 402(p) sets up a basic program for storm water discharges that establishes priorities, deadlines, and application requirements.(79) It also provides some relief to municipal and nonindustrial entities from the typical NPDES permit requirements.(80)

Congress first provided a general moratorium on storm water permits until October 1, 1994,(81) subject to five exceptions: 1) discharges already regulated under an NPDES permit, 2) industrial discharges, 3) large MS4s, 4) medium MS4s, and 5) any discharge designated by EPA or the State as a significant contributor to violations of water quality standards or pollutants into a waterway.(82) Congress distinguished between large, medium, and small MS4s in order to place priority on the discharges that were major contributors to the impairment of water quality.(83) This statutory scheme enabled EPA to split up the MS4 regulatory program into two phases. Phase I covers discharges from large and medium MS4s; Phase II covers small MS4s.(84)

Section 402(p)(3)(B) sets out the relaxed permit requirements for MS4s. The storm water program allows for issuance of system- or jurisdiction-wide permits, which alleviates the difficulty of permitting every discharge point, of which a large MS4 may have hundreds.(85) The permits must include a prohibition on non-storm water discharges into the MS4 system and "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 Administrator or the State determines appropriate for the control of such pollutants."(86) "Maximum extent practicable" (MEP), the treatment standard for MS4s, was a new CWA technology standard that Congress did not define.(87) The legislative history indicates that Congress intended that site-specific standards would be used rather than traditional end-of-pipe limits.(88) These relaxed standards enabled EPA to create an MS4 program that is more flexible than the traditional NPDES permit requirements.

Section 402(p)(5) directed EPA to conduct a study designed to better understand storm water discharges and how to control their adverse effects on water quality.(89) The study was supposed to accomplish three goals: identify storm water discharges that fell under the permit moratorium, determine "the nature and extent of pollutants in such discharges," and establish methods and controls for storm water that will protect water quality.(90) Congress directed EPA to use the results of the study to assist in developing the regulations for storm water discharges covered by the moratorium.(91) EPA completed this task with the promulgation of the Phase II regulations.

C. Regulation Delays

The Water Quality Act of 1987 directed EPA to promulgate rules for large MS4s by February 4, 1989,(92) medium MS4s by February 4, 1991,(93) and small MS4s by October 1, 1993.(94) EPA missed the deadlines for large and small MS4s. Phase I regulations, which cover large and medium MS4s, were not promulgated until November 16, 1990 after much controversy.(95) In response to the proposed rule,(96) EPA received over 3200 pages of comments from affected industries, trade association, municipalities, state and federal agencies, environmental groups, and private citizens.(97) After EPA missed the 1989 deadline, a citizen filed suit to compel promulgation of regulations? As a result of the lawsuit, EPA entered into a consent decree, which required regulations by October 31, 1990.(99) EPA also missed this deadline, but only by a few weeks.(100)

Phase II regulations, which cover small MS4s and small construction sites, took EPA another nine years to develop.(101) The agency conducted extensive public outreach, particularly with small communities, which contributed to the delay. EPA requested comments on three key issues in September 1992 as a starting point for developing the rule.(102) In 1993, EPA conducted several public and expert meetings that included outreach to representatives of small municipalities.(103) The Agency also established the Urban Wet Weather Flows Federal Advisory Committee, composed of representatives of interested parties to advise on the proposed rules.(104) Ultimately, the final rule extended the application deadline for small MS4s to March 10, 2003.(105) The result of this continued delay, which began at the creation of the NPDES scheme in 1972, is a storm water program that is still in its early stages with many discharges remaining unpermitted and uncontrolled.

III. THE MS4 PROGRAM

The permitting approach developed by EPA for MS4s differs from the typical effluent limits used in NPDES permits. First, the program requires MS4s to develop storm water management programs (SWMPs) and use BMPs to reduce pollution, rather than requiring end-of-pipe technology controls.(106) Second, EPA encourages municipalities to use a watershed management approach to address storm water pollution control.(107) To facilitate this approach, EPA allows the use of system-wide or general permits and encourages multiple MS4s within the same watershed to obtain co-permits,(108) This allows different entities that operate storm sewer systems in the same area to combine efforts on their SWMPs that are tailored to the needs of the particular watershed. This permitting approach also precludes the need to obtain a permit for every outfall within an MS4.(109) Third, as provided by section 402(p)(3), the MS4 technology standard reduces the discharge of pollutants to "the maximum extent practicable" (MEP), a standard that both Congress and EPA have declined to define.(110) This approach to pollution management and NPDES permitting has resulted in a flexible regulatory program that leaves maximum control with the municipalities.

A. Phase I Regulations for Large and Medium MS4s

Phase I regulations were promulgated November 16, 1990 and require all medium and large MS4s to obtain NPDES permits for their storm sewer discharges.(111) EPA and the states have designated 1059 MS4s as subject to Phase I regulations, 1017 of which have received or are in the final stages of receiving an NPDES permit as of February 2000.(112) EPA recently updated the list of large and medium MS4s to reflect the 1990 census and as of promulgation of the Phase II regulations, has frozen that list.(113) All other MS4s must proceed under Phase II regulations, even if in the future the MS4 grows to technically qualify as large or medium.(114)

Phase I focuses upon the application process, which is divided into two parts over two years and requires the "development and implementation of a local, site-specific [SWMP]."(115) SWMPs must include a plan to: identify major outfalls and pollutant loads;(116) detect and eliminate non-storm water discharges; reduce pollutants from industrial, commercial, and residential areas; control discharge from new development and redevelopment; and meet the treatment standard of "reducing pollutants to the maximum extent practicable."(117)

Part one of the application primarily focuses on gathering information about the MS4(118); it requires the municipality to describe any existing programs, the means available to it to control pollutant discharges, and information on a field screening program to identify illicit connections.(119) A year after submitting part one, the MS4 must complete part two--which expands upon the information and the SWMP initially provided in part one--based upon representative data gathered from major outfalls.(120) Part two of the application has six elements,(121) requiring the MS4 to 1) demonstrate that it has adequate legal authority to implement the SWMP,(122) 2) describe the location of major outfalls and identify industrial facilities that discharge storm water through the MS4, 3) provide representative data in accord with an approved sampling plan, 4) describe the proposed SWMP, 5) describe assessment measures to determine the effectiveness of the proposed SWMP,(123) and 6) provide a fiscal analysis of necessary expenditures to operate and maintain the SWMP.(124) In addition, when the permit covers more than one legal entity, the application must address the individual responsibilities of each legal entity and how pollution control efforts will be coordinated.(125)

Once the application is complete, the permitting authority issues an NPDES permit that incorporates the SWMP. The permit conditions consist of implementation of the program and any other requirements to ensure proper management, such as a timetable for implementation.(126) Also, the MS4 must submit annual reports that include a status report on SWMP implementation; any proposed changes to the SWMP; a summary of data collected in the previous year; annual expenditures and the budget for the coming year; a summary of enforcement actions, inspections, and public education programs; and identification of water quality improvements or degradation.(127) Sampling data and monitoring focus on major outfalls, with testing limited to 250 outfalls for medium MS4s and 500 outfalls for large MS4s.(128) MS4s use models to estimate pollutant loads and concentration.(129)

Although large and medium MS4s are required to "submit information on source control methods and estimate the annual pollutant load reduction, ... they are not required to achieve any specified level of reduction of any pollutants."(130) EPA's failure to provide any definitive measurable requirements for MS4s is the program's weakest aspect. Because MS4s are not required to achieve any measurable goals, whether the MS4 is properly and effectively implementing its SWMP is difficult to determine, at least by objective means.

B. Phase II Regulations for Small MS4s

Six years after the statutory deadline, the Phase II regulations were promulgated on December 8, 1999.(131) These regulations provide NPDES permit coverage for "donut holes," which are unregulated, smaller MS4s located within urban areas that include a larger Phase I MS4.(132) EPA designated 5040 small MS4s located in "urbanized areas" that will be regulated under Phase II.(133) The state permitting authority must also designate other small MS4s whose discharges "result[] in or [have] the potential to result in exceedances of water quality standards."(134) The permitting authority is required to develop a process and criteria to make these designations.(135) EPA suggests using six designation criteria which consider whether the MS4: 1) discharges to sensitive waters, 2) has high growth potential, 3) has a high population density, 4) is contiguous to an "urbanized area," 5) is a significant contributor of pollutants to waters, and 6) is ineffective in protecting water quality through other programs.(136) This requirement mandates that at a minimum, the state authority examine all MS4s serving a jurisdiction with a population density of at least 1000 persons per square mile and a population over 10,000; however, states are encouraged to examine smaller MS4s and designate those that meet the established criteria.(137) Citizens may also petition the permitting authority to designate small MS4s for Phase II regulation.(138)

There are two types of permit waivers potentially available for regulated small MS4s.(139) Small MS4s that serve a population of less than 1000 can obtain a waiver if they do not contribute to the pollutant loading of an interconnected MS4 and regulation is not necessary based on a TMDL.(140) MS4s serving a population of less than 10,000 can obtain a waiver if the state has evaluated all the receiving waters for that MS4 and regulation is not necessary based on an established TMDL that addresses pollutants of concern.(141) In general, a small MS4 is covered by the Phase II program, unless a waiver is obtained.(142) However, because EPA encourages the use of general permits (including state-wide permits) for regulated small MS4s,(143) the application process and SWMP development is far less comprehensive in the Phase II program than under Phase I.(144)

The permit application for Phase II focuses on selecting appropriate BMPs that address the six minimum measures established by EPA and setting goals for implementation of those BMPs.(145) The minimum measures and the selected BMPs become the MS4's SWMP. Each MS4 must develop and implement the following: a public education and outreach program to inform the public about storm water impacts; public involvement or participation programs that include the public in developing, implementing, and reviewing the SWMP; a program to detect and eliminate illicit discharges(146); requirements (through ordinances and site inspections) for construction sites to control pollutants in storm water runoff to the MS4; a program (using BMPs and ordinances) to address post construction storm water management in new development and redevelopment; and an operation and maintenance program that prevents or reduces pollutant runoff from municipal operations.(147) The Phase II MS4 must also submit annual reports for the first permit term and in years two and four for subsequent permits.(148)

Small MS4s are required only to proceed with good faith implementation of their selected BMPs to be in permit compliance.(149) Under Phase II, like Phase I, the MS4 is not required to achieve pollutant load reductions or improvements in ambient water quality.(150) Further, EPA strongly recommends that permitting authorities not place any additional requirements beyond the minimum control measures in Phase II permits until after EPA evaluates the program in 2012.(151) Although EPA professes that the goal of the storm water program is to protect water quality,(152) it does not require that MS4s attain water quality standards, or meet measurable standards for achieving that goal.

C. EPA's Interim Water Quality Policy

Due to the nature of storm water and the lack of information on which to base numeric effluent limits of pollutant concentration and mass, EPA developed an interim policy for inclusion of water quality limitations in MS4 NPDES permits.(153) The policy applies only to EPA-issued permits, but EPA encourages states with permitting authority to adopt a similar approach. Although this policy was developed prior to the decision in Defenders of Wildlife--which held that MS4 permits are not required to contain any more stringent limitations necessary to attain water quality standards(154)--the policy remains in effect as the preferred method to attain water quality standards. And even though attainment is not mandated (at least in the Ninth Circuit), achievement of water quality standards remains a listed goal of MS4 permits.(155)

EPA's policy is to use BMPs in the first round of permits and in later permits to include expanded and better-tailored BMPs where necessary to attain water quality standards.(156) Where information exists to develop specific conditions or limitations to meet water quality standards, those should be incorporated into permits as necessary and appropriate. Further, each permit should include coordinated, cost-effective monitoring programs.(157) EPA's policy addresses the type of effluent limits appropriate to obtain water quality standards in MS4 permits; it does not pertain to technology-based limits.(158) This policy reflects EPA's decision not to establish defined standards for MS4s, but rather to improve gradually the type of BMPs an MS4 is implementing in its SWMP as a means of attaining water quality standards. Following the Ninth Circuit ruling in Defenders of Wildlife, it is possible, at least in the Ninth Circuit, that EPA and the states will not even do this much to bring MS4s into attainment with water quality standards. EPA explicitly stated in the Phase II regulations that it strongly recommends not requiring more stringent limitations than the minimum control measures for small MS4s prior to 2012.(159) Permitting authorities may become content with the BMPs implemented in the first round of permits and not require more tailored or stringent controls in later permits, regardless of whether the MS4 is contributing to a violation of a water quality standard.

IV. NINTH CIRCUIT CASE LAW

Two significant Ninth Circuit cases address the substantive requirements of the MS4 program. In Natural Resources Defense Council v. EPA, NRDC challenged EPA's decision not to define the MS4 technology standard of "reducing pollutants to the maximum extent practicable."(160) In Defenders of Wildlife v. Browner, Defenders of Wildlife sought to require EPA to include numeric effluent limits in MS4 permits in order to attain water quality standards.(161) In both cases, the Ninth Circuit held that the MS4 program as outlined in section 402(p) of the CWA did not require EPA to develop strict standards for MS4 permits.(162)

A. The MS4 Standard: "To the Maximum Extent Practicable"

In 1992, NRDC challenged several aspects of EPA's 1990 Phase I rule, including a challenge to EPA's decision not to define the MEP technology standard.(163) Prior to the Water Quality Act of 1987, MS4s were subject to the same controls as all point sources, although EPA never successfully promulgated regulations.(164) In section 402(p), the Water Quality Act retained existing controls for industrial discharges, but created a new standard for MS4s: MS4s "shall" prohibit non-storm water discharges into the system and "shall require controls to reduce the discharge of pollutants to the maximum extent practicable."(165)

NRDC claimed that EPA's regulations did not meet the requirements of section 402(p). They argued that the regulations did not achieve the stated goal of effectively prohibiting illicit discharges, that the regulations did not provide minimum controls for meeting MEP as required by the CWA, and that the mandated testing was inadequate because only minimal sampling at a limited number of sites was required.(166) According to NRDC, "Congress granted the moratorium precisely to give EPA the opportunity to develop new, substantive standards for storm water control of municipal sources and instead EPA wrote vague regulations containing no minimum criteria or performance standards."(167) EPA argued that section 402(p) did not mandate the development of a detailed substantive standard, but instead allowed for the effectiveness of individual permits to be decided on a by-permit basis in the discretion of the permitting authority.(168)

Proceeding with a Chevron analysis,(169) the Ninth Circuit, in a cursory opinion, rejected NRDC's arguments. First, the court construed section 402(p) to require a permitting authority to design controls, but stated "Congress did not mandate a minimum standards approach or specify that EPA develop minimal performance requirements."(170) The court concluded that the language of the statute gave the permitting authority much discretion in determining whether an individual applicant's proposed controls are adequate to eliminate illicit discharges and to satisfy MEP.(171) Since the statutory language did not specify controls and gave discretion to EPA, the court, in step two of its Chevron analysis, deferred to EPA's judgment not to mandate minimum performance standards and to determine the adequacy of controls on a by-permit basis.(172)

As to NRDC's third argument, the Ninth Circuit again deferred to EPA's judgment because EPA had "adequately explained" its decision to limit sampling in the application phase.(173) In the publication of the Phase I rule, EPA explained that MS4 discharges are complex and variable, which makes comprehensive sampling difficult.(174) EPA required field screening from representative outfalls to detect high pollutants in dry weather flows, which indicate illicit discharges, and to gain preliminary representative data.(175) The Agency reasoned that the majority of data would be collected during the permit term, and that Congress created this system to "balance the usefulness of [the] data against the economic and logistical constraints in actually obtaining it."(176) The Ninth Circuit's decision left intact EPA's MS4 regulatory approach; an approach that does not define performance standards, does not require attainment of measurable goals, and does not require comprehensive monitoring or storm water quality characterization.

B. MS4 Compliance with Water Quality Standards

1. Defenders of Wildlife v. Browner

In 1999, Defenders of Wildlife challenged five municipal permits issued in Arizona, claiming that the CWA requires numeric effluent limitations to ensure strict compliance with state water quality standards.(177) NPDES permits ordinarily impose effluent limitations on discharges under the applicable technology-based standard, mandated under section 301 of the CWA.(178) In addition, section 301(b)(1)(C) requires that a permit holder "shall ... achieve ... any more stringent limitation, including those necessary to meet water quality standards, treatment standards or schedules of compliance, established pursuant to any State law or regulations."(179) Generally, if the discharge will contribute to a violation of state water quality standards, the permitting authority must impose additional effluent limits designed to ensure that the discharge will no longer contribute to that violation.(180)

Section 402(p)(3) sets out two different storm water standards, one for industrial discharges and one for MS4s. Industrial discharges are required to "meet all applicable provisions of [section 402(p)(3)] and section [301] of this title."(181) MS4s are required 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 Administrator or the State determines appropriate for the control of such pollutants."(182) Both EPA and Defenders of Wildlife argued that the standards set out in section 402(p)(3) were ambiguous as to whether Congress intended municipalities to comply strictly with water quality standards, pursuant to section 301(b)(1)(C).(183) EPA and Defenders of Wildlife agreed that the CWA should be interpreted to apply section 301(b)(1)(C) to MS4s; however, they disagreed over the form those effluent limits should take.(184) Conversely, the intervenor cities and amici curiae(185) argued that the provisions were not ambiguous and that the MS4 standard set forth in section 402(p)(3)(B) does not require MS4s to comply with section 301(b)(1)(C).(186)

The Ninth Circuit applied a Chevron analysis to EPA's interpretation of the statute and agreed with the intervenors that the meaning of section 402(p)(3) was not ambiguous, thus, stopping at step one of the analysis.(187) Looking at the language of the statute, the court applied the proposition that "[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion."(188) Here, Congress expressly required industrial storm water discharges to comply with section 301, which includes strict compliance with water quality standards.(189) However, Congress used different language in the MS4 standard. MS4s must reduce pollutants to the maximum extent practicable, but Congress did not mention section 301 as it did in the industrial standard.(190) Applying the principle, the Ninth Circuit concluded that the MS4 standard unambiguously does not require strict compliance with section 301(b)(1)(C).(191) The court held that this was the only proper conclusion because otherwise both the statutory sections would not be given effect, a result courts prefer to avoid.(192) Reasoning that the MS4 MEP standard created a lesser requirement than section 301, the court held that the MS4 standard must replace all of section 301, otherwise section 301 would always control, rendering the MS4 standard superfluous.(193)

Finally, the Ninth Circuit supported its interpretation with its decision in NRDC v. EPA. In that case, the court concluded that EPA did not need to establish minimum standards for MS4s and requiring strict compliance with water quality standards would be a minimum standard requirement.(194) The court held that not requiring compliance with section 301(b)(1)(C) was consistent with its earlier ruling and supportive of its reading of section 402(p) as not requiring controls beyond the vague MEP standard.(195)

The Ninth Circuit further determined that although Congress did not require strict compliance with section 301, EPA or an authorized state could, in its discretion, require such compliance.(196) Section 402(p)(3)(B)(iii) also states that the permit "shall require ... such other provisions as the Administrator or the State determines appropriate for the control of such pollutants."(197) The permitting authority may determine that strict compliance with water quality standards is necessary, or that less than strict compliance is appropriate.(198) This holding is important because leaving discretion to require more stringent limitations ensures that EPA maintains a place at the table with respect to whether MS4s must comply with water quality standards.

2. Harmonizing Sections 402(p)(3) and 301

It is not entirely clear what Congress intended in section 402(p)(3). The juxtaposition of the industrial standard, which includes a reference to section 301, and the MS4 standard, which does not mention section 301, suggests the interpretation that section 301 does not apply at all to MS4s. This is the interpretation the Ninth Circuit accepted. However, this is only the Ninth Circuit's interpretation; this is still a live issue in the other circuits, and there is support for EPA's original position that MS4s must comply with water quality standards as required by section 301(b)(1)(C).(199)

First, when interpreting a statute the court must observe a "fundamental canon of statutory construction" that a court is not to confine itself to the particular provision at issue, but rather "the words of a statute must be read in their context and with a view to their place in the overall statutory scheme."(200) This requires that a court "interpret the statute `as a symmetrical and coherent regulatory scheme,' and `fit, if possible all parts into a harmonious whole.'"(201) Read together, the text of sections 301, 401, and 402 suggests that MS4s must comply with water quality standards. Section 402(a)(1), which applies to all NPDES permits, requires that permits be issued in accordance with applicable provisions of section 301, which includes technology-based standards, as well as the mandate that permits shall include more stringent limitations necessary to meet water quality standards.(202) Section 401 contains the requirement that federally issued permits must be certified by the state to comply with state water quality standards, allowing the state to condition issuance of the permit upon imposition of additional requirements (beyond technology-based standards) to ensure compliance.(203) These two sections demonstrate a CWA policy that NPDES permits are to ensure attainment of water quality standards. This is the CWA "safety-net"; if the technology based standards cannot achieve water quality standards, then more stringent limitations shall be required.

In section 402(p)(3), Congress clearly drew a distinction between industrial discharges, which must comply with both the technology-based and water quality-based requirements of section 301, and MS4s, which are required to meet MEP. However, it does not necessarily follow that Congress intended to waive all of section 301's requirements as to MS4 NPDES permits. It is possible that Congress intended for MEP to modify only the technology-based standards in section 301, but that MS4 permits must still contain requirements necessary to achieve water quality standards.(204) This second reading is more in concert with the general rule that NPDES permits must ensure compliance with water quality standards and with the overall CWA policy of attaining water quality standards.

Further, the interpretation adopted by the Ninth Circuit assumes that section 402(p)(3) impliedly waived section 301(b)(1)(C)'s requirement for MS4s because as a general rule, all NPDES permits are subject to the requirements of section 301 (b)(1)(C).(205) However, it is a rule of statutory construction that implied repeals of statutory sections by later enacted provisions are disfavored, unless the two provisions are in "irreconcilable conflict" or the later enacted section "covers the whole subject of the earlier [section] and is clearly intended as a substitute."(206) In either case, "the intention of the legislature to repeal must be clear and manifest."(207) Here, the language of section 402(p)(3) is not in irreconcilable conflict with section 301(b)(1)(C). An MS4 could comply with both provisions, as section 30l(b)(1)(C) only serves as a supplement to the MEP standard when those controls are not sufficient to attain water quality standards. Also, section 402(p)(3) is not a clear substitute because it does not address the issue of whether MS4s must comply with water quality standards. The interpretation that section 30l(b)(1)(C) requirements apply to MS4s harmonizes the two provisions and gives effect to the overall policy that NPDES permits are to provide a means for attainment of water quality standards.

This reading is also more in concert with the general focus of the Water Quality Act of 1987, which was to improve compliance with water quality-based requirements of the CWA.(208) This focus is demonstrated by the addition of several sections to the CWA, including section 303(c)(2)(B), which requires states to adopt criteria for toxic pollutants that may interfere with designated uses;(209) section 304(l), which requires states to list waters in nonattainment with water quality standards, to identify the causes of nonattainment, and develop control strategies to bring those waters into attainment(210); section 319, which addresses controlling nonpoint pollution that is contributing to nonattainment of water quality standards(211); and section 402(o), which is an anti-backsliding provision preventing relaxation of effluent limits in later NPDES permits, including limits imposed under section 301(b)(1)(C).(212) The storm water provisions were a large part of the Water Quality Act amendments and it seems a strange result that those provisions would contain an exemption to the general rule requiring NPDES permits to ensure attainment of water quality standards without Congress explicitly acknowledging that result.

Although the Ninth Circuit did not find this reading persuasive, the court's reasoning is open to question because the meaning of section 402(p)(3) could easily be interpreted as ambiguous because both interpretations are textually supported by the statute. If the court had determined that the section was ambiguous, it would have proceeded to step two of the Chevron analysis and would likely have found EPA's interpretation reasonable--an interpretation that required MS4s to comply with section 301(b)(1)(C).(213) And under EPA's regulations, NPDES permits must ensure attainment of water quality standards, a result that EPA's interim policy does not appear to guarantee.(214)

The troubling aspect of the Ninth Circuit's ruling is that EPA or a state permitting authority could decide to abandon entirely the policy of MS4 discharges attaining water quality standards. Because EPA has only provided vague and highly discretionary guidance as to what satisfies the MS4 technology standard of MEP, and because compliance with an MS4 permit is based solely upon good faith implementation of a SWMP, there is no statutory or regulatory protection of the goal of attaining acceptable water quality in MS4 discharges.

V. STATUS OF THE MS4 PROGRAM

Of the 1059 MS4s subject to regulation under Phase I, 1017 have submitted permit applications and nine are not participating.(215) As of December 2000, federal district courts have decided only two compliance actions.(216) The majority of Phase I MS4s are complying with the application requirements to develop a SWMP designed to control the adverse impacts of storm water discharges.(217) However, the SWMPs' descriptions of BMPs vary in detail and specificity, so that actual improvements in water quality may vary greatly among MS4s.(218) Also, EPA has not conducted a nationwide review of SWMPs or measured the effectiveness of implemented BMPs on a large scale, resulting in limited information on whether implementation of BMPs is enabling MS4s to attain compliance with state water quality standards.(219) Much of what EPA has learned about BMP effectiveness has been through the research and studies of outside organizations, which are based on case studies, limited monitoring research, and anecdotal evidence.(220)

A. Storm Water Best Management Practices (BMPs)

A storm water BMP is a cost-effective strategy, measure, or engineered structural control designed to control the quantity and improve the quality of storm water.(221) Each type of BMP has limitations on its individual ability to improve water quality, so a variety of BMPs must be implemented based upon the conditions of the locality.(222) These conditions may include length of dry periods, average rainfall intensity, soil types, land use patterns, or the amount of impervious surface area.(223) Storm water BMPs fall into two main categories: nonstructural and structural.

Nonstructural BMPs are "institutional, education[al], or pollution prevention practices designed to limit the generation of storm water runoff or reduce the amounts of pollutants contained in the runoff."(224) These BMPs include a variety of practices that can reduce storm water pollution. For example, changing traditional land use patterns through growth management and conserving open space within developments reduces the overall amount of impervious surface, thus preserving natural processes that filter out pollutants and recharge groundwater.(225) Public education and outreach operates to prevent pollution by changing harmful individual and commercial practices, such as improper pollutant disposal and pesticide and fertilizer overuse.(226) Industrial, commercial, and municipal good housekeeping measures are used to prevent pollutants from being washed into storm drains by limiting or preventing exposure to rain, storm water, or wash water.(227) An important and required nonstructural BMP is illicit discharge detection and elimination, which can greatly reduce some of the worst storm water pollution.(228)

Structural BMPs are site-specific engineered and constructed treatment systems that improve the quality, or control the quantity, of storm water at the point of generation or the point of discharge.(229) These BMPs have limited site-specific benefits that are most effective in highly impervious areas and where prevention practices alone are not enough to improve storm water quality.(230) Typically, structural BMPs fall into four categories: detention practices, biofiltration practices, infiltration practices, and filtration practices.(231) Detention systems collect and temporarily store storm water and then discharge it through an outlet into a water body.(232) Biofiltration and bioretention measures use plants to filter the storm water, slow the water down so contaminants can settle out, and then allow the water to infiltrate into the ground.(233) Infiltration systems temporarily store storm water in basins, so that the water can slowly infiltrate into the ground below.(234) Filtration measures use media such as peat or gravel to filter out pollutants from the storm water.(235)

BMPs are most effective if a proper variety of controls are implemented as part of a comprehensive plan.(236) The benefits of individual BMPs are site-specific and depend upon a number of factors, including the number, intensity, and duration of wet weather flows; pollutant removal efficiency; the water quality and physical condition of the receiving waters; and the existing and potential uses of the receiving waters.(237) There are limited studies on the overall effectiveness of BMPs in achieving water quality standards, but a proper selection of BMPs has the potential to reduce pollutant loads in an MS4's discharges.

B. BMP Effectiveness

BMP efficiency is the ability of a BMP to remove pollutants from runoff; effectiveness is the resulting actual improvement in water quality or aquatic habitat.(238) Most studies on BMPs have focused on their pollutant removal efficiency, which is difficult to translate into actual effectiveness in terms of improving water quality.(239) However, characterization of local water quality and the implemented BMPs' effect on that water quality is key to determining the success of an MS4's SWMP.

1. Nonstructural BMPs

Nonstructural BMPs are cost-effective pollution prevention measures that are central to a successful storm water program.(240) These measures can have positive effects on water quality, but those effects are not being successfully monitored in a way that translates into quantitative showings of improved water quality.(241) It is difficult to reduce the success of nonstructural BMPs to quantitative measures, such as pollution reduction and improvements in receiving stream water quality, because nonstructural BMPs focus on pollution prevention, changing land use practices, and individual habits.(242) A few case study municipalities have attempted to quantify the improvements that result from implementation of these measures.(243)

There is little quantitative data on the effectiveness of education and outreach. Measures that have been used in an attempt to quantify the effectiveness of these types of programs include the number of flyers distributed over a given period, the number of radio or television broadcasts, the number of public workshops held per year, the percentage of storm drains stenciled, and the number of volunteer monitoring and stewardship groups formed.(244) These measures do not reflect actual pollutant reductions in storm water, but these outreach efforts are important to reduce pollution from harmful individual practices, and a successful storm water program depends upon public support and participation.(245) Outreach efforts must be regularly evaluated to ensure that people are receiving the education and changing their behavior accordingly; these follow up evaluations may be the best measure for effectiveness.(246) Some MS4s have made attempts to correlate education programs to the reduction of pollutants in a water body--for example, Minneapolis, Minnesota estimated that concentrations of pesticides in Lake Harriet dropped between fifty-nine and eighty-six percent due to outreach efforts.(247)

Recycling and source controls are also important pollution prevention measures and may be evaluated by the quantity of materials recycled.(248) Sacramento, California treats thousands of gallons of wash water each year in an effort to reduce the introduction of liquid wastes into its MS4.(249) Fort Worth, Texas annually destroys or recycles 50,000 gallons of household-generated toxic liquid waste that might otherwise have been dumped into storm sewers.(250) However, water quality improvements often cannot be extrapolated from these data, nor do many MS4s attempt to monitor for water quality improvements resulting from these programs.(251)

The section 402(p) requirement that SWMPs provide for detection and elimination of illicit discharges into an MS4 has effectively reduced pollutant loads where a comprehensive program is in place. The most effective illicit discharge elimination programs combine education and enforcement efforts.(252) Education informs businesses and individuals about the need to prevent illicit discharges; enforcement is the motivation to pay attention.(253) In Dover, New Hampshire the repair of a single illicit cross-connection improved the water quality from a storm sewer outfall, resulting in shellfish bed improvement of over ninety-nine percent based on measured enterococci bacteria.(254) Boston, Massachusetts reduced its MS4 pollutant discharge and improved dry-weather water quality through its storm sewer inspection and dry-weather monitoring program.(255) In Portland, Oregon, regular monitoring prevents wastes from reaching the Willamette River. Portland estimated that in 1996 the program prevented the discharge of 250 pounds of total suspended solids and biochemical oxygen-demanding material, 40 pounds of total nitrogen, and 10 pounds of phosphorus.(256)

These limited case studies illustrate that the use of nonstructural controls can have a positive impact on the quality of MS4 discharges. These types of controls share the benefits of being cost-effective and involving the community through stewardship groups and education, which are important to raise awareness about the potential adverse impacts of everyday activities, such as car washing and fertilizer use.(257) However, these methods have serious shortcomings. Education and recycling programs require regular evaluation to ensure they are reaching the targeted audience and changing their behavior.(258) Many outreach efforts have been poorly conceived and unsuccessful,(259) making them unreliable as pollution prevention measures. Absent water quality monitoring, the effectiveness of nonstructural controls is speculative and cannot be relied on as effective measures to reduce pollutant loads. In addition, nonstructural methods alone cannot achieve attainment of water quality standards, particularly in communities with high percentages of impervious areas.

2. Structural BMPs

The use of structural BMPs can effectively remove high quantities of particular pollutants, but actual load reduction varies according to the type of pollutant measured.(260) EPA found it was common to report between a twenty and eighty percent pollutant reduction depending upon the control used and the pollutant measured.(261) Structural BMPs remove pollutants in two ways: through natural processes that degrade or recycle pollutants and through physical removal of pollutants with BMP maintenance.(262) Their effectiveness can be determined by reductions in pollutant loads and storm water flow rates and volume.(263) However, most evaluation methods for structural BMPs focus on pollutant removal efficiencies, rather than effectiveness.(264) Monitoring ambient water quality or bioassessment(265) of aquatic habitat is necessary to accurately ascertain the effectiveness of a SWMP.

NRDC's case studies provide examples of the potential benefits that structural controls can provide for MS4s. In Austin, Texas, the installation of storm water detention ponds in mixed-use developments reduced annual sediment discharge by several tons and nutrients forty-four to sixty-five percent, compared to unmanaged conditions.(266) The ponds also improved oxygenation and provided flood and erosion control through the slow release of captured runoff.(267) In Montgomery County, Maryland, structural BMPs prevented twenty-three percent of sediment loadings and twenty-seven percent of nitrogen loadings from entering streams in 1998.(268) Prince George's County, Maryland reduced concentrations through structural BMPs of nutrients by twenty to eighty percent and concentrations of metals by forty to ninety-nine percent.(269) In a Florida study of twenty-two wet ponds, the effluent discharge from the ponds complied with water quality standards at least sixty-five percent of the time.(270)

Structural controls, although often costly, may be the key to achieving acceptable levels of pollution reduction for most urban communities. Case studies illustrate that the appropriate implementation of these controls results in water quality benefits. However, the implementation of any BMP on formerly uncontrolled storm water discharges is likely to result in water quality improvements. Nevertheless, several weaknesses of the storm water program must be addressed to ensure continuing water quality improvement.

C. Weaknesses of the MS4 Program

In its Phase I report, EPA found that successful storm water programs share three common traits: public support for storm water programs, planning to prevent future storm water problems through zoning and development requirements, and the identification and targeting of sources of pollutants of concern (POCs) for the local water body.(271) However, even SWMPs containing these "successful" attributes may not ensure attainment of water quality standards because of major weaknesses inherent in the MS4 program.

1. Monitoring for Effectiveness

Monitoring efforts in the MS4 program fail to identify whether storm water controls are resulting in the attainment of water quality standards, either locally or nationally.(272) Appropriate monitoring confirms the connection between storm water discharges and POCs that are impairing water quality. Sampling and characterization of dry weather discharges often will indicate the presence of POCs--an important step for illicit discharge detection and elimination, which has been effective in protecting storm water quality.(273) Characterization of wet weather discharges and ambient water quality are important steps in determining the effectiveness of implemented BMPs. Further, the lack of comprehensive water quality data with respect to storm water limits the ability of agencies or citizens to enforce compliance.(274)

This process of characterizing the general ambient water quality and identifying POCs and their sources is costly and time consuming.(275) Municipalities have complained that monitoring results in large expenditures without resulting in commensurate benefits.(276) EPA has estimated that "a minimum of ten years of monitoring both ambient and storm water discharges is necessary for each MS4 to be characterized (the time required to account for natural variation and to characterize other pollutant sources)."(277) Also, there is no standardization of monitoring and evaluation techniques, and the data gathered so far does not adequately characterize the impacts of storm water on ambient water quality.(278) Standardized monitoring must be implemented to assess the effects of a particular MS4 on receiving water quality. In some circumstances, the best factors for determining the success of a SWMP may be indicators such as receiving stream morphology, habitat, and biological communities, rather than measuring gross pollutant loads.(279)

Despite these difficulties, substantial steps are needed in the characterization of storm water quality so that appropriate BMPs are implemented that address the needs and conditions of a particular watershed. If MS4s are going to achieve compliance with water quality standards--which is an overall goal of the CWA--the focus of storm water and BMP monitoring needs to shift from efficiencies to effectiveness. Regardless of the number of nonstructural or structural controls an MS4 implements, if the selection and implementation of those controls are not effective at improving ambient water quality, the MS4 will likely remain in noncompliance with water quality standards.

2. Measurable Goals and Performance Standards

The lack of set minimum performance standards for MS4s may be hindering the attainment of water quality standards and the determination of whether the MS4 program is successful.(280) Although flexibility in the storm water program is valuable and necessary, without definitive baseline standards it will be difficult to enforce compliance with individual permits, and the success of SWMPs will remain difficult to measure. NRDC concluded in its storm water study that measurable goals for MS4s are important because "they provide a standard by which citizens and the municipality itself can judge municipal efforts. Clear standards are essential to maintaining accountability."(281) However, under the current regulations, "[t]he plans set forth in permit applications are just that--plans."(282) Without enforceable standards, effective implementation of those plans cannot be guaranteed.

Additionally, the Ninth Circuit decision in Defenders of Wildlife v. Browner not only confirms EPA's decision not to require achievement of measurable standards, but allows CWA permitting authorities to refrain from requiring compliance with water quality standards at all.(283) This result suggests that the extra effort and expenditures necessary to measure ambient water quality may provide the necessary disincentive for states not to require water quality monitoring, given that water quality standard compliance is not mandated. This lack of substantive guidance and measurable goals may result in MS4 permits that do not seek to improve upon the early demonstrated benefits of first round BMPs, despite the fact that ambient water quality standards may not be achieved.

3. Watershed Management and TMDLs

The current trend in resource management is a movement towards watershed wide integration of land, air, and water controls.(284) Watershed management focuses upon the health of the entire watershed and then tailors resource management programs to achieve those health-related goals.(285) EPA has indicated a need for better watershed management and integration of wet weather controls on a watershed basis.(286) Reflecting this trend, Congress recently amended the CWA, granting EPA the authority to provide technical assistance and grants to treatment works initiating wet weather watershed pilot programs.(287) A successful storm water program, particularly one that takes into account the realities of watershed management, requires participation in planning and decision making by all affected communities, particularly because nearby unregulated MS4s affect regulated MS4s' ability to attain water quality standards. Integrated control of all pollution sources within a watershed or sub-watershed would be beneficial to achievement of water quality standards. This effort requires cooperation across community and utility boundaries.

Use of TMDLs for an integrated management of water quality-limited waters is an attractive possibility. TMDLs look broadly at the cumulative effects of discharges on a watershed, taking into account all pollution sources, including nonpoint sources, when assessing the amount of pollutants a waterbody can absorb.(288) Integrating TMDLs into watershed management is growing in importance. The TMDL provision of the CWA was largely ignored by the states until of series of citizen suits, which compelled EPA to create TMDLs for water quality-limited waters if the states fail to do so.(289) EPA believes that TMDLs will have a significant role in converting conventional pollution control to watershed management.(290)

For an effective watershed approach, all CWA requirements for a particular area should be combined into a unified effort, which includes integrating TMDLs into MS4 programs. This does not mean that the MS4 permits would have to contain numeric effluent limits. TMDLs may also specify "habitat parameters," such as indicating high erosion areas or lack of riparian vegetation, which are then linked to specified management measures.(291) These TMDL measures could provide enforceable, measurable goals for MS4s located on water quality-limited waters and would facilitate a watershed management approach. This approach would also require the type of monitoring efforts now lacking in the MS4 program--assessing ambient water quality and characterizing storm water discharges impact on water quality and habitat.

VI. CONCLUSION

Regulation of MS4s under Phase I of the CWA storm water program is reducing pollutant loads in storm water discharges. Appropriately implemented and maintained, BMPs can accomplish attainment of water quality standards. The difficulty lies in whether the manner in which the storm water program is being implemented is meaningful. The stated goal of the program is to achieve water quality standards, but without mandated performance standards and storm water quality characterization, it is uncertain whether this goal can be achieved. The Ninth Circuit not only has upheld EPA's policy not to require any minimum performance standards or measurable goals, but it has placed the decision to require more stringent limitations necessary to comply with water quality standards entirely within the discretion of permitting authorities.(292) This discretion has been exercised only minimally by EPA in its interim permitting policy, which does not require more stringent limitations, but rather endorses the use of "better-tailored" BMPs in subsequent permits where "appropriate."(293) This type of permitting is highly discretionary with each permit and does not guarantee that BMPs effectively addressing water quality problems or POCs will be implemented. The history of the CWA is littered with instances of state and EPA nonenforcement of state water quality standards, resulting in citizens filing lawsuits to compel compliance.(294) However, the lack of minimum measurable standards--technology or water-quality based--in the MS4 storm water program and the lack of comprehensive water quality data may potentially foreclose this avenue of ensuring CWA compliance.(295)

The first step in creating a storm water program that ensures meaningful implementation of pollution controls is to address the information gaps in water quality and monitoring. Both municipalities and EPA have recognized that the current system does not enable entities to determine the effectiveness of implemented BMPs.(296) EPA and the American Society of Civil Engineers (ASCE) are currently addressing this information gap. In a joint effort, they recently developed a standardized monitoring system for the evaluation of BMPs to be included in the BMP database.(297) However, this effort still reflects a focus on site-specific measures, rather than on overall water quality assessment for the MS4. Once a more meaningful monitoring system is established, this will suggest the direction the storm water program should take. Ultimately, MS4 permits should be tied into TMDLs that are developed for water quality-limited waters. This would also provide measurable standards by which compliance with the CWA could be evaluated and would facilitate a watershed regulatory approach. The MS4 storm water program has the potential to improve the quality of many polluted water bodies, but without minimum standards and required compliance with water quality standards, that potential may not be realized.

(1) Although the term is often presented as a single word, I have chosen to use the two-word spelling of "storm water." EPA received several comments on the appropriate spelling in response to its proposed Phase I rule and chose to adopt the two-word spelling approved by the Government Printing Office. National Pollutant Discharge Elimination System (NPDES) Application for Storm Water Discharges, 55 Fed. Reg. 47,990, 47,997 (Nov. 16, 1990) (codified at 40 C.F.R. pts. 9, 122, & 124).

(2) EPA, 1998 NATIONAL WATER QUALITY INVENTORY ES-3 ("Pollution from urban and agricultural land that is transported by precipitation and runoff ... is the leading source of impairment."), available at http://www.epa.gov/305b/98report/ (last modified Oct. 5, 2000).

(3) Id. at 70, 92, 110, 114, 119 (urban runoff affects 11% of impaired rivers and streams, 12% of impaired lakes, 4% of impaired Great Lakes shoreline, 50% of impaired ocean shoreline, and 28% of impaired estuaries).

(4) NATIONAL WILDLIFE FEDERATION, POLLUTION PARALYSIS II: CODE RED FOR WATERSHEDS 6 (2000), available at http://www.nwf.org/wwf/watersheds/paralysis/ index.html (last visited Dec. 27, 2000).

(5) Id.

(6) Id. at 5.

(7) 191 F.3d 1159 (9th Cir.), amended by 197 F.3d 1035 (9th Cir. 1999).

(8) Id. at 1166-67.

(9) EPA, REPORT TO CONGRESS ON THE PHASE I STORM WATER REGULATIONS 1-1 (2000) [hereinafter PHASE I REPORT], available at http://www.epa.gov/owm/sw/about/exec2.htm (last modified March 24, 2000).

(10) EPA, REPORT TO CONGRESS ON THE PHASE II STORM WATER REGULATIONS IV-4 (1999) [hereinafter PHASE II REPORT], available at http://www.epa.gov/owm/sw/phase2/report.pdf (last visited Dec. 27, 2000).

(11) PHASE I REPORT, supra note 9, at 1-1; PHASE II REPORT, supra note 10, at IV-4.

(12) Anthony O. Conetta, Stormwater Management for Small Communities under EPA's Phase II Regulations, ENVTL. REG. & PERMITHNG, Summer 2000, at 47, 47-48. The pollutants discharged through MS4s include suspended solids, sediments, bacteria, nutrients, pesticides, herbicides, toxics, floatables, oil, grease, heavy metals, synthetic organics, petroleum hydrocarbons, and oxygen demanding substances. Id.

(13) EPA, PRELIMINARY DATA SUMMARY OF URBAN STORM WATER BEST MANAGEMENT PRACTICES 4-2 (1999) [hereinafter URBAN BMPs], available at http://www.epa.gov/ OST/stormwater/#Report (last modified May 24, 2000).

(14) Id. Storm water contributed to 25% of the 1,651 beach closings reported in 1997. NATURAL RESOURCES DEFENSE COUNCIL, STORMWATER STRATEGIES: COMMUNITY RESPONSES TO RUNOFF POLLUTION 45 (1999) [hereinafter STORMWATER STRATEGIES], available at http://www.nrdc.org/water/pollution/storm/stoinx.com (last modified Feb. 4, 2001).

(15) Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387 (1994 & Supp. III 1997).

(16) Id. [sections] 1251(a)(2) ("[I]t is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved.").

(17) "Except as in compliance with [provisions of the CWA] the discharge of any pollutant by any person shall be unlawful." Id. [sections] 1311(a).

(18) Id. [sections] 1342. EPA issues NPDES permits, unless a state has obtained EPA approval to issue NPDES permits for local discharges through its own state environmental agency. Id. [sections] 1342(b).

(19) Id. [sections] 1313(a)(3)(A) ("Any State which ... has not adopted pursuant to its own laws water quality standards ... shall ... adopt and submit such standards to the Administrator."). State water quality standards are set through a two-step process; first, designated uses are set for each waterway, second, water quality standards necessary to meet those uses are set. 40 C.F.R. [subsections] 131.10-.11 (2000).

(20) 33 U.S.C. [sections] 131 l(b)(1)(C) (1994).

(21) An MS4 is a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, manmade channels, or storm drains):

(i) Owned or operated by a State, city, town, borough, county, parish, district, association, or other public body (created by or pursuant to State law) having jurisdiction over disposal of sewage, industrial wastes, storm water, or other wastes, including special districts under State law such as a sewer district, flood control district or drainage district, or similar entity, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under section 208 of the CWA that discharges to waters of the United States;

(ii) Designed or used for collecting or conveying storm water;

(iii) Which is not a combined sewer; and

(iv) Which is not part of a Publicly Owned Treatment Works (POTW) as defined at 40 C.F.R. [sections] 122.2.

40 C.F.R. [sections] 122.26(b)(8) (2000).

   Outfall means a point source as defined by 40 C.F.R. [sections] 122.2 at
   the point where a municipal separate storm sewer discharges to waters of
   the United States and does not include open conveyances connecting two
   municipal separate storm sewers, or pipes, tunnels, or other conveyances
   which connect segments of the same stream or other waters of the United
   States and are used to convey waters of the United States.

Id. [sections] 122.26(b)(9).

(22) Id. [sections] 122.26(b)(9).

(23) Joel B. Eisen, Toward a Sustainable Urbanism: Lessons from Federal Regulation of Urban Stormwater Runoff, 48 WASH. U. J. URB. & CONTEMP. L. 1, 18-19 (1995) (detailing the significant environmental damage caused by storm water runoff and the importance of addressing the problem).

(24) Id. at 25-26 (describing why the typical "end-of-pipe" controls employed by industries are not appropriate for MS4s).

(25) Id. at 13.

(26) Id. at 16.

(27) Id. at 15-16.

(28) Id. at 25-26.

(29) Pub. L. No. 100-4, 101 Stat. 7 (codified as amended at 33 U.S.C. [subsections] 1251-1387 (1994)).

(30) 33 U.S.C. [sections] 1342(p) (1994).

(31) Id. [sections] 1342(p)(4)(A)-(B) (1994).

(32) NPDES Application Regulations for Storm Water Discharges, 55 Fed. Reg. 47,990, 47,990 (Nov. 16, 1990) (codified at 40 C.F.R. pts. 122, 123, & 124). A large MS4 serves a population of 250,000 or more and a medium MS4 serves a population between 100,000 and 250,000. 40 C.F.R. [sections] 122.26(b)(4), (7) (2000). A small MS4 serves a population under 100,000. Id. [sections] 122.26(d)(16).

(33) NPDES--Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 Fed. Reg. 68,722, 68,722 (Dec. 8, 1999) (codified at 40 C.F.R. pts. 9, 122, 123, & 124).

(34) Id. at 68,742 ("EPA is very aware of municipal concerns about possible federal interference with local land use planning [and] the Agency believes it has addressed these concerns by a flexible approach.").

(35) Compare 33 U.S.C. [sections] 1311(b)(1)(A) (1994) (requiring effluent limitations under best available control technology) with 33 U.S.C. [sections] 1342(p)(3)(b)(iii) (1994) (requiring MS4s to reduce their discharge of pollutants to the maximum extent practicable). See also 40 C.F.R. [sections] 122.26(d)(2)(iv) (2000) (requiring implementation of a Storm Water Management Program (SWMP) rather than end-of-pipe technology).

(36) PHASE I REPORT, supra note 9, at ES-2.

(37) See id. at ES-1. These "performance-based" methods may include structural controls or pollution prevention techniques, such as public education and outreach. See discussion infra Part V.

(38) BMPs are techniques or structural controls used to manage the quantity or improve the quality of storm water runoff. URBAN BMPS, supra note 13, at 5-1; see discussion infra Part V.A.

(39) 40 C.F.R. [sections] 122.26(d)(2)(iv) (2000).

(40) NPDES Permit Application Regulations for Storm Water Discharges, 55 Fed. Reg. 47,990, 48,038 (Nov. 16, 1990) (codified at 40 C.F.R. pts. 122, 123, & 124).

(41) Defenders of Wildlife v. Browner, 191 F.3d 1159, 1161 (9th Cir.) amended by 197 F.3d 1035 (9th Cir. 1999). The five municipalities were the cities of Tempe, Tucson, Mesa, and Phoenix, Arizona and Pima County, Arizona. Id.

(42) Id.

(43) Id. at 1166. Specifically, the Ninth Circuit determined that section 301 of the CWA did not apply to MS4s, which requires implementation of more stringent limitations when necessary to achieve water quality standards. Id.

(44) Id.

(45) PHASE I REPORT, supra note 9, at ES-5.

(46) See, e.g., URBAN BMPs, supra note 13, at 5-45 to 5-46 (summary of BMP pollutant removal efficiencies).

(47) Id. at 5-85.

(48) PHASE I REPORT, supra note 9, at 3-30.

(49) 966 F.2d 1292 (9th Cir. 1992).

(50) Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816 (codified as amended at 33 U.S.C. [subsections] 1251-1376 (1994 & Supp. III 1997)). The 1972 amendments replaced the largely unsuccessful Federal Water Pollution Control Act of 1948, Pub. L. No. 80-845, 62 Stat. 1155 (1948) (superseded 1972). The 1972 amendments created a program that gave significant control to the federal government and established the goal of eliminating discharge of pollutants into navigable waters by 1985. 33 U.S.C. [sections] 1251(a)(1) (1994); Eisen, supra note 23, at 37 n. 185.

(51) 33 U.S.C. [sections] 1251(a) (1994).

(52) Id. [sections] 1311(a). A point source is defined as "any discernible, confined and discrete conveyance ... from which pollutants are or may be discharged." Id. [sections] 1362(14).

(53) Id. [sections] 1342(a).

(54) Id. [sections] 1311(b).

(55) Id. [sections] 1342(k).

(56) Id. [sections] 1313(a)(3)(A).

(57) 40 C.F.R. [subsections] 131.10-.11 (2000).

(58) 33 U.S.C. [sections] 1313(d)(1)(C) (1994).

(59) Peter M. Lacy, Chapter, Addressing Water Pollution from Livestock Grazing After ONDA v. Dombeck: Legal Strategies Under the Clean Water Act, 30 ENVTL. L. 617, 627 (2000).

(60) 40 C.F.R. [sections] 130.7 (2000).

(61) Id.

(62) Id.

(63) 33 U.S.C. [sections] 1313(d)(1)(C) (1994).

(64) Id. [sections] 131 l(b)(1)(C). "[E]ach NPDES permit shall include ... any requirements in addition to or more stringent than promulgated effluent limitations guidelines or standards ... necessary to: (1) Achieve water quality standards established under section 303 of the CWA, including State narrative criteria for water quality." 40 C.F.R. [sections] 122.44(d) (2000).

(65) Lisa E. Roberts, Is the Gun Loaded This Time? EPA's Proposed Revisions to the Total Maximum Daily Load Program, 6 ENVTL. LAW. 635, 645 (2000).

(66) Storm water begins as precipitation covering a diffuse area that without collection, would constitute a nonpoint source. The CWA distinguishes between point and nonpoint sources, with only point sources subject to the NPDES permit program. 33 U.S.C. [sections] 1311(a) (1994) ("the discharge of any pollutant by any person shall be unlawful"); id. [sections] 1342(a) (1994) ("the Administrator may ... issue a permit for the discharge of any pollutant); id. 1362(12) (1994) ("`discharge of a pollutant' ... means ... any addition of any pollutant to navigable waters from any point source"). Nonpoint source is not defined by the CWA, but is generally considered to be any pollution source that is not a point source and is referred to as "runoff." See EPA, NONPOINT SOURCE GUIDANCE (1987) reprinted in ENVIRONMENTAL LAW INSTITUTE, CLEAN WATER DESKBOOK 177 (1991) ("[N]onpoint source pollution does not result from a discharge at a specific location (such as a single pipe) but generally results from land runoff, precipitation, atmospheric deposition, or percolation."); Oregon Natural Desert Ass'n v. Dombeck, 172 F.3d 1092, 1098 (9th Cir. 1998) ("[T]he term `runoff describes pollution flowing from nonpoint sources.").

(67) MS4 outfalls are considered point sources subject to NPDES permits. 40 C.F.R. [sections] 122.26(b)(9) (2000).

(68) Natural Res. Def. Council v. Costle, 568 F.2d 1369, 1372 (D.C. Cir. 1977). EPA exempted "[u]ncontrolled discharges composed entirely of storm runoff when these discharges are uncontaminated by any industrial or commercial activity, unless the particular storm runoff discharge has been identified ... as a significant contributor of pollution." Id. at 1372 n.5 (quoting 40 C.F.R. [sections] 125.4 (1975)).

(69) Id. at 1377.

(70) Id. at 1378.

(71) Id. at 1379-81.

(72) See id. at 1379 (stating that lack of a national effluent limitation for MS4s does not authorize EPA to exclude MS4s from the NPDES permitting system).

(73) Eisen, supra note 23, at 41.

(74) Consolidated Permit Regulations; Revision in Accordance With Settlement, 47 Fed. Reg. 52,072, 52,072 (proposed Nov. 18, 1982). Point sources were limited to a "storm water discharge," which was defined as a conveyance of storm water runoff contaminated with processed wastes, raw materials, toxic pollutants, certain listed hazardous pollutants, or grease and oil. Id. at 52,073.

(75) Eisen, supra note 23, at 42.

(76) Id. The EPA divided storm water point sources into two groups; Group I included industry related sources that were subject to effluent limitations guidelines, and Group II included all other sources, which were required only to submit information about their discharge. Id. at 42-43 nn.205-06. In August 1985, EPA revised the rule to extend the deadlines for obtaining NPDES permits. Id. at 43.

(77) NPDES Application for Storm Water Discharges, 55 Fed. Reg. 47,990, 47,993 (Nov. 16, 1990) (codified at 40 C.F.R. pts. 9, 122, & 124). EPA implemented the court order by repealing 40 C.F.R. [sections] 122.26. NPDES; Deletion of Existing Storm Water Discharge Permit Regulations and Permit Application Deadlines for Group I and Group II Storm Water Discharges, 53 Fed. Reg. 4157, 4157 (Feb. 12, 1988).

(78) Senator Durenberger (R-Minn.) expressed frustration with EPA's failure to develop regulations for storm water point sources:

   The Federal Water Pollution Control Act of 1972 required all point sources,
   including storm water discharges, to apply for NPDES permits within 180
   days of enactment. Despite this clear directive, EPA has failed to require
   most storm water point sources to apply for permits that would control the
   pollutants in their discharge.

   The conference bill therefore includes provisions which address industrial,
   municipal, and other storm water point sources. I participated in the
   development of this provision because I believe it is critical for the
   Environmental Protection Agency to begin addressing this serious
   environmental problem.

133 CONG. REC. 1279-80 (Jan. 14, 1987).

(79) Lawrence R. Liebesman & Elliot P. Laws, The Water Quality Act of 1987: A Major Step in Assuring the Quality of the Nation's Waters, 17 ENVTL. L. REP. (Envtl. L. Inst.) 10,311, 10,324 (1987).

(80) See 33 U.S.C. [sections] 1342(p) (1994) (providing a moratorium for certain classes of discharges and creating the MS4 standard of reduction of pollutants to the maximum extent practicable).

(81) The original deadline was October 1, 1992, but Congress extended it in 1992. Water Resources Development Act of 1992, Pub. L. No. 102-580, [sections] 364, 106 Stat. 4797, 4862 (codified as amended 33 U.S.C. [sections] 1342(p) (1994)).

(82) 33 U.S.C. [sections] 1342(p)(2) (1994). A large MS4 serves a population of 250,000 or more and a medium MS4 serves a population between 100,000 and 250,000. Id.

(83) Eisen, supra note 23, at 47. Large MS4s had the most stringent application deadline, followed by medium and then small MS4s. 33 U.S.C. [sections] 1342(p)(4) (1994).

(84) Eisen, supra note 23, at 47.

(85) 33 U.S.C. [sections] 1342(p)(3)(B)(i) (1994); Eisen, supra note 23, at 15.

(86) 33 U.S.C. [sections] 1342(p)(3)(B) (1994) (emphasis added).

(87) Eisen, supra note 23, at 46.

(88) NPDES Application Regulations for Storm Water Discharges, 55 Fed. Reg. 47,990, 48,038 (Nov. 16, 1990) (codified at 40 C.F.R. pts. 9, 122, & 124); 132 CONG. REC. 32,381 (Oct. 16, 1986) (statement of Sen. Stafford (R-Vt.)) ("These permits will not necessarily be like industrial discharge permits. Often, an end-of-pipe treatment technology is not appropriate for this type of discharge.").

(89) 33 U.S.C. [sections] 1342(p)(5) (1994).

(90) Id. EPA submitted a study to Congress in 1995 that addressed the first two components. The third component was addressed in President Clinton's Clean Water Initiative, released in 1994. NPDES--Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 65 Fed. Reg. 68,722, 68,732 (Dec. 8, 1999) (codified at 40 C.F.R. pts. 9, 122, 123, & 124).

(91) 33 U.S.C. [sections] 1342(p)(6) (1994).

(92) Id. [sections] 1342(p)(4)(A).

(93) Id. [sections] 1342(p)(4)(B).

(94) Id. [sections] 1342(p)(6).

(95) NPDES Permit Application for Storm Water Discharges, 55 Fed. Reg. 47,990 (Nov. 16, 1990) (codified at 40 C.F.R. pts. 9, 122, & 124).

(96) NPDES Permit Application Regulations for Storm Water Discharges, 53 Fed. Reg. 49,416 (proposed Dec. 7, 1988).

(97) 55 Fed. Reg. at 47,994.

(98) Eisen, supra note 23, at 48 n.231.

(99) Id.

(100) Id.

(101) NPDES--Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 Fed. Reg. 68,722 (Dec. 8, 1999) (codified at (40) C.F.R. pts. 9, 122, 123, & 124).

(102) NPDES, Request for Comment on Alternative Approaches for Phase II Storm Water Program, 57 Fed. Reg. 41,344, 41,344 (Sept. 9, 1992). The three issues were "1) [h]ow should EPA identify unregulated sources of storm water to protect water quality, 2) what types of control strategies should EPA develop for these sources, and 3) what are appropriate deadlines for implementing new requirements." 64 Fed. Reg. at 68,724.

(103) Id.

(104) Id. The committee included representatives from municipalities, states, Indian Tribes, industrial and commercial sectors, agriculture, and environmental and public interest groups. Id.

(105) 40 C.F.R. [sections] 122.33(c)(1) (2000).

(106) PHASE I REPORT, supra note 9, at ES-1.

(107) 64 Fed. Reg. at 68,738 (extending deadlines for designation of small MS4s if a watershed plan is in place). A watershed is an area drained by a common body of water. Brian Weeks, Trends in Regulation of Stormwater and Nonpoint Source Pollution, 25 ENVTL. L. REP. (Envtl. L. Inst.) 10,300, 10,303 (1995).

(108) 40 C.F.R. [sections] 122.26(a)(3)(ii), (iii)(A), (iv) (2000); id. [sections] 122.30(d).

(109) Eisen, supra note 23, at 53.

(110) 33 U.S.C. [sections] 1342(p)(3)(B)(iii) (1994); see Natural Res. Def. Council v. EPA, 966 F.2d 1292, 1308 (9th Cir. 1992) (holding EPA was not required to establish substantive minimum standards for MS4s).

(111) NPDES Permit Application Regulations for Storm Water Discharges, 55 Fed. Reg. 47,990 (Nov. 16, 1990) (codified 40 C.F.R. pts. 122, 123, & 124).

(112) PHASE I REPORT, supra note 9, at 3-5. EPA originally designated only 252 of the MS4s; 807 of the MS4s subject to Phase I were designated into the program as a copermittee with a larger MS4 or the state authority specifically designated it. Of the 42 MS4s not seeking permits, 33 obtained combined sewer system exemptions and 9 are "nonparticipants." Id.

(113) Id. at 3-2.

(114) The original distinction between large, medium, and small MS4s was created so that the most significant contributors of pollutants would be regulated first. Now that all MS4s are required to obtain permits, the distinction is probably no longer required. However, because the Phase II program process is not as comprehensive as Phase I, fast growing communities not designated as a Phase I MS4 may not develop SWMPs that effectively address their needs.

(115) PHASE I REPORT, supra note 9, at 3-2.

(116) A major outfall is one "that discharges from a single pipe with an inside diameter of 36 inches or more or its equivalent," or an outfall from an MS4 that drains an industrial area and has an inside diameter of 12 inches or more or its equivalent. 40 C.F.R. [sections] 122.26(b)(5) (2000).

(117) PHASE I REPORT, supra note 9, at ES-3.

(118) Specifically, part one contains the following six parts: 1) general information, 2) information on legal authority to control discharges into the MS4, 3) source identification of outfalls and a description of current controls, 4) discharge and representative outfall characterization that includes field screening to assess volume and quality of storm water and a description of known water quality impacts, 5) a description of any existing storm water controls and programs to identify illicit connections to the system, and 6) a description of financial sources to complete Part 2 of the application and to implement a storm water program. 40 C.F.R. [sections] 122.26(d)(1)(2000).

(119) An illicit discharge is "any discharge to a[n MS4] that is not composed entirely of storm water except discharges pursuant to a NPDES permit ... and discharges resulting from fire fighting activities." 40 C.F.R. [sections] 122.26(b)(2) (2000). Illicit discharges can enter the MS4 through direct pipe connections or indirect connections, such as cracked sanitary pipes or direct dumping into MS4 drains. NPDES--Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 Fed. Reg. 68,722, 68,727 (Dec. 8, 1999) (codified at 40 C.F.R. pts. 9, 122, 123, & 124). An illicit connection or cross-connection is a direct pipe connection into the MS4 from a non-storm water source. Id.

(120) NPDES Application for Storm Water Discharges, 55 Fed. Reg. 47,990, 48,044 (Nov. 16, 1990) (codified at 40 C.F.R. pts. 9, 122, & 124).

(121) 40 C.F.R. [sections] 122.26(d)(2) (2000).

(122) The MS4 must have authority pursuant to a statute, ordinance, or series of contracts that, at minimum, enables the MS4 to control the contribution of pollutants to the MS4 by industrial sources, prohibit illicit discharges, control spills and illegal dumping, control contribution of pollutants among coapplicants, require compliance with storm water conditions, and carry out inspections and compliance actions to ensure permit compliance and prohibit illicit discharges. Id. [sections] 122.26(d)(2)(i).

(123) These measures include estimates of pollutant load reductions. PHASE I REPORT, supra note 9, at 3-3.

(124) Id.

(125) Id. at 3-4.

(126) Id.

(127) 40 C.F.R. [sections] 122.42(c) (2000); PHASE I REPORT, supra note 9, at 3-4.

(128) NPDES Application Regulations for Storm Water Discharges, 55 Fed. Reg. 47,990, 48,046 (Nov. 16, 1990) (codified at 40 C.F.R. pts. 9, 122, 123 & 124). For example, in Washington and Idaho, numeric effluent limits and compliance with state water quality standards are not permit conditions, nor are municipalities required to achieve measurable goals beyond mere implementation of BMPs. See WASH. DEP'T OF ECOLOGY, NPDES MUNICIPAL PERMIT: CLARIFICATION OF PERMIT CONDITIONS 2 (1995) (on file with author) [hereinafter WASHINGTON PERMIT CLARIFICATIONS] ("Determination of permit compliance within the first permit cycle will be based on progress in implementing stormwater management programs rather than success in achieving water quality standards."); EPA REGION 10, NPDES PERMIT NUMBER IDS-02756-1 FACT SHEET 12 (2000) (on file with author) [hereinafter IDAHO PERMIT FACT SHEET] (explaining permit compliance "will be accomplished by the implementation of the described activities of the various elements of the SWMP, according to the schedule included").

(129) 55 Fed. Reg. at 48,046.

(130) Natural Res. Def. Council v. EPA, 966 F.2d 1292, 1308 n. 17 (9th Cir. 1992); see 40 C.F.R. [sections] 122.26(d)(2)(iii) (2000) (requiring the MS4 to characterize the discharged effluent from major outfalls).

(131) NPDES--Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 Fed. Reg. 68,722 (Dec. 8, 1999) (codified at 40 C.F.R. pts. 9, 122, 123, & 124).

(132) PHASE II REPORT, supra note 10, at IV-1. These donut holes frustrate the attainment of water quality by nearby regulated Phase I MS4s. Id.

(133) Id. at II-3. "An `urbanized area' [requires] a population of at least 50,000 and a population density of at least 1,000 persons per square mile." Chris A. Mattison, New Storm Water Regulations Affect Municipalities and Smaller Construction Operations, 2000 COLO. LAW. 71, 74. The areas targeted by this definition are the densely settled residential fringes surrounding urban areas. Id.

(134) 40 C.F.R. [sections] 123.35(b)(1)(i) (2000).

(135) Id. [sections] 123.35(b).

(136) Id. [sections] 123.35(b)(1)(ii).

(137) Id. [sections] 123.35(b)(2)-(3).

(138) Id. [sections] 122.26(f).

(139) Id. [sections] 123.35(d)(1)-(2).

(140) Id. [sections] 123.35(d)(1).

(141) Id. [sections] 122.35(d)(2)(i)-(iv).

(142) Id. [sections] 122.32(a).

(143) Id. [sections] 123.35(h)(2).

(144) For small MS4s proceeding under a general permit, the permitting authority must provide a menu of BMPs to assist the MS4 in designing and implementing a program that addresses the six minimum measures. Id. [sections] 123.35(g).

(145) Mattison, supra note 133, at 74.

(146) This measure requires the MS4 to develop a storm sewer system map, prohibit non-storm water discharges and implement enforcement procedures and actions, develop and implement a plan to detect and address non-storm water discharges, and inform the public about the hazards of illegal discharges. 40 C.F.R. [sections] 122.34(b)(3) (2000).

(147) Id. [sections] 122.34(d).

(148) Id. [sections] 122.34(g)(3). These reports are similar to the ones required by the Phase I program, except that EPA did not specify sampling and monitoring requirements. Instead the MS4 is to "evaluate program compliance, the appropriateness of ... identified [BMPs], and progress towards achieving [its] identified measurable goals." Id. [sections] 122.34(g)(1).

(149) Id. [sections] 122.34(d)(2) ("Implementation of best management practices ... constitutes compliance with the standard of reducing pollutants to the `maximum extent practicable.").

(150) PHASE II REPORT, supra note 10, at III-2.

(151) Id. [sections] 122.34(e)(2) (section 122.37 explicitly mandates the 2012 evaluation date).

(152) Id. [sections] 122.30(b).

(153) Interim Permitting Approach for Water Quality-Based Effluent Limitations for Storm Water Permits, 61 Fed. Reg. 43,761, 43,761 (Aug. 26, 1996).

(154) Defenders of Wildlife v. Browner, 191 F.3d 1159, 1166 (9th Cir.), amended by 197 F.3d 1035 (9th Cir. 1999).

(155) See IDAHO PERMIT FACT SHEET, supra note 128, at 7, 8 (stating more stringent limitations are not necessary, but listing attainment of Idaho water quality standards as goals of the SWMP).

(156) 61 Fed. Reg. at 43,761. NPDES permits are issued for no more than five years. 33 U.S.C. [sections] 1342(b)(1)(B) (1994). Many Phase I MS4's first round permits have or will soon expire. As new permits are issued, better information should be available as to whether this permitting approach is moving successfully toward the attainment of state water quality standards.

(157) 61 Fed. Reg. at 43,761.

(158) Id. Industrial storm water discharges must comply with the technology standards found in section 301 of the CWA. 33 U.S.C. [sections] 1342(p)(3)(A) (1994) (requiring industrial discharge permits to comply with effluent limitations). MS4s must comply with MEP, which is met through implementation of an approved SWMP. See Storm Water Discharges, 40 C.F.R. [sections] 122.26(d)(2)(iv) (2000) (stating that "[p]roposed programs will be considered by the Director when developing permit conditions to reduce pollutants in discharges to the maximum extent practicable"); id. [sections] 122.34(a) ("Implementation of best management practices ... constitutes compliance with the standard of reducing pollutants to the `maximum extent practicable.").

(159) 40 C.F.R. [sections] 122.34(e)(2) (2000).

(160) 966 F.2d 1292, 1308 (9th Cir. 1992).

(161) 191 F.3d at 1159, 1161 (9th Cir.), amended by 197 F.3d 1035 (9th Cir. 1999).

(162) NRDC v. EPA, 966 F.2d at 1308; Defenders of Wildlife, 191 F.3d at 1166.

(163) 966 F.2d at 1301, 1308.

(164) Id. at 1308.

(165) 33 U.S.C. [sections] 1342(p)(3)(B) (1994).

(166) 966 F.2d at 1308.

(167) Id.

(168) Id.

(169) Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (1984). In Chevron, the Supreme Court set up a two-step review for agency statutory interpretations. Under step one, the reviewing court asks whether the statutory section under review is ambiguous or silent on the point at issue. If the court determines that the section is clear, the inquiry stops at step one. If the court determines that the statute is ambiguous or silent, step two asks whether the agency interpretation is reasonable. If it is reasonable, the court cannot substitute its own judgment for the agency's interpretation. Id. at 842-44.

(170) 966 F.2d at 1308. The court noted, however, that "[w]hether a specific permit complies with the requirements of section 402(p)(3)(B) would, of course, be another matter not controlled by this decision." Id. at 1308 n.18. This issue was partially addressed in the following case. See Defenders of Wildlife v. Browner, 191 F.3d 1159 (9th Cir. 1999) (challenging permits issued to five Arizona MS4s).

(171) 966 F.2d at 1308.

(172) Id.

(173) Id.

(174) NPDES Application for Storm Water Discharges, 55 Fed. Reg. 47,990, 48,049 (Nov. 16, 1990) (codified at 40 C.F.R. pts. 9, 122, & 124).

(175) Id.

(176) Id. at 48,050.

(177) 191 F.3d 1159, 1161 (9th Cir.), amended by 197 F.3d 1035 (9th Cir. 1999).

(178) Id. at 1163:33 U.S.C. [sections] 1311(b)(2) (1994). An "effluent limitation" is "any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance." 33 U.S.C. [sections] 1362(11) (1994).

(179) 33 U.S.C. [sections] 1311(b)(1)(C) (1994). EPA interprets the definition of effluent limitation as not requiring numeric limits to comply with section 301(b)(1)(C). This interpretation is supported by EPA regulations and case law. See 40 C.F.R. [sections] 122.44(k) (2000) (allowing use of BMPs to attain water quality standards where numeric limits are infeasible); Natural Res. Def. Council, Inc. v. Costle, 568 F.2d 1369, 1380 (D.C. Cir. 1977) (stating where numeric limits are infeasible EPA may use other conditions to reduce the level of effluent).

(180) 40 C.F.R. [sections] 122.44(d) (2000).

(181) 33 U.S.C. [sections] 1342(p)(3)(A) (1994).

(182) Id. [sections] 1342(p)(3)(B)(iii).

(183) 191 F.3d at 1164.

(184) See Questions and Answers Regarding Implementation of an Interim Permitting Approach for Water Quality-Based Effluent Limitations in Storm Water Permits, 61 Fed. Reg. 57,425, 57,426 (Nov. 6, 1996) (stating section 301(b)(1)(C) applies to MS4s, but numeric limits are not required); City of Tucson, 7 E.A.D. 646 (1998), 1998 WL 284966 (Defenders of Wildlife insisted that numeric effluent limits were required to comply with section 301 and 40 C.F.R. [sections] 122.44.).

(185) Tempe, Tucson, Mesa, and Phoenix, Arizona, whose permits were contested, intervened in the action. 191 F.3d at 1160. Three organizations participated as amici: National Association of Flood and Storm Management Agencies, the National League of Cities--National Association of Counties, and the Association of Metropolitan Sewage Agencies. City of Tucson, 7 E.A.D. at n.3.

(186) 191 F.3d at 1164.

(187) Id.

(188) Id. at 1165 (quoting Russello v. United States, 464 U.S. 16, 23 (1983)).

(189) 33 U.S.C. [sections] 1342(p)(3)(A) (1994).

(190) Id. [sections] 1342(p)(3)(B)(iii).

(191) 191 F.3d at 1165.

(192) Id.

(193) However, this statement assumes that MEP alone cannot attain water quality standards. If an MS4 reduces its effluent discharges to MEP and if those discharges are in compliance with water quality standards, the MS4 would not be required to implement more stringent effluent limitations. Section 30l(b)(1)(C) requirements are trigged only if the applicable technology-based standard--which for MS4s is MEP--is not stringent enough for that discharge to meet water quality standards for the receiving waters. 33 U.S.C. [sections] 1311(b)(1)(C) (1994). The Ninth Circuit may have assumed that either all of section 301 applies, or it does not, rather than separating the technology-based standards from the "safety net" of requiring compliance with water quality standards.

(194) 191 F.3d at 1166.

(194) Id.

(196) Id. at 1166-67.

(197) 33 U.S.C. [sections] 1342(p)(3)(B)(iii) (1994).

(198) 191 F.3d at 1166.

(199) Memorandum from E. Donald Elliot, EPA Assistant Administrator and General Counsel, to Nancy J. Marvel, EPA Regional Counsel, Region IX *1 (Jan. 9, 1991), 1991 WL 326640 [hereinafter Elliot Memo] ("The better reading of Sections 402(p)(3)(B) and 301(b)(1)(C) is that all permits for MS4s must include any requirements necessary to achieve compliance with [water quality standards].").

(200) Food and Drug Admin. v. Brown and Williamson Tobacco Corp., 529 U.S. 120, 133 (2000).

(20l) Id. (citations omitted).

(202) 33 U.S.C. [sections] 1342(a)(1) ("[T]he Administrator may ... issue a permit for the discharge of any pollutant ... upon condition that such discharge will meet ... all applicable requirements under sections 1311, 1312, 1316, 1317, 1318, and 1343 of this title.").

(203) PUD No. 1 of Jefferson County v. Wash. Dep't of Ecology, 511 U.S. 700, 712 (1994).

(204) Eisen, supra note 23, at 62. Although the legislative history of the Water Quality Act does not address this issue, the section by section analysis suggests that Congress may have intended that section 301(b)(1)(C) apply to MS4s. It stated that "[w]ith respect to municipal storm sewer discharges ... [t]he relief afforded by this provision extends only to October 1, 1992. After that date, all municipal separate storm sewers are subject to the requirements of sections 301 and 402." 133 CONG. REC. H131 (Jan. 7, 1987) (emphasis added). Since the language of section 402(p)(3) clearly did not require MS4s to meet the section 301 technology standards, this reference suggests that Congress may have intended MS4 permits to comply with water quality standards.

(205) See 33 U.S.C. [sections] 1342(a)(1) (1994) (requiring all NPDES permits to comply with applicable provisions of section 301); 40 C.F.R. [sections] 122.44(d) (2000) (requiring NPDES permits to include state water quality standards that "must control all pollutants or pollutant parameters ... which the Director determines are or may be discharged at a level which will cause, have the reasonable potential to cause, or contribute to an excursion above any State water quality standard, including State narrative criteria for water quality") (emphasis added).

(206) Kremer v. Chem. Constr. Corp., 456 U.S. 461, 468 (1982).

(207) Id.

(208) Roberts, supra note 65, at 645; Elliot Memo, supra note 199, at *3.

(209) 33 U.S.C. [sections] 1313(c)(2)(B) (1994).

(210) Id. [sections] 1314(l).

(211) Id. [sections] 1329.

(212) Id. [sections] 1342(o).

(213) Defenders of Wildlife v. Browner, 191 F.3d 1159, 1162 (9th Cir.) amended by 197 F.3d 1035 (9th Cir. 1999).

(214) 40 C.F.R. [sections] 122.44(d) (2000).

(215) PHASE I REPORT, supra note 9, at ES-5. The remaining 33 entities received combined sewer overflow exemptions. Id.

(216) Waste Action Project v. Clark County, 45 F. Supp. 2d 1049 (W.D. Wash. 1999) (holding Clark County was subject to Phase I regulations); Miss. River Revival, Inc. v. EPA, 107 F. Supp. 2d 1008 (D. Minn. 2000) (holding that EPA was not a proper party because Minnesota was the authorized permitting authority and that citizens cannot challenge the adequacy of a permit application).

(217) PHASE I REPORT, supra note 9, at ES-5.

(218) URBAN BMPS, supra note 13, at 3-2.

(219) Id.; GEOSYNTEC CONSULTANTS ET AL., DETERMINING URBAN STORMWATER BEST MANAGEMENT PRACTICE (BMP) REMOVAL EFFICIENCIES 19 (2000) (hereinafter BMP REMOVAL EFFICIENCIES].

(220) PHASE I REPORT, supra note 9, at 3-5.

(221) URBAN BMPs, supra note 13, at 5-1.

(222) Id.

(223) Id. at 4-5 to 4-6.

(224) Id. at 5-1.

(225) STORMWATER STRATEGIES, supra note 14, at 58-59.

(226) Id. at 76.

(227) "Good housekeeping" includes a variety of pollution prevention practices, such as cleaning storm water catch basins of debris, street sweeping, prevention of sediment erosion on construction sites, proper storage of pollutants, and reduction of fertilizer and pesticide use. Id. at 85-86; URBAN BMPs, supra note 13, at 2-2.

(228) 40 C.F.R. [sections] 122.26(d)(2)(iv)(B) (2000) (Phase I requirement to eliminate illicit discharges); id. [sections] 122.34(b)(3) (Phase II); STORMWATER STRATEGIES, supra note 14, at 83.

(229) URBAN BMPS, supra note 13, at 5-1, 5-7.

(230) STORMWATER STRATEGIES, supra note 14, at 72.

(231) Id.

(232) Id. Detention systems include controls such as wet and dry ponds and underground vaults. URBAN BMPS, supra note 13, at 2-2.

(233) STORMWATER STRATEGIES, supra note 14, at 74. These BMPs include constructed wetlands and vegetated filter strips or swales. Id.; URBAN BMPs, supra note 13, at 2-2.

(234) STORMWATER STRATEGIES, supra note 14, at 74.

(235) Id.

(236) URBAN BMPS, supra note 13, at 5-7.

(237) Id. at 1-3. EPA has suggested that implementation of BMPs should address three main factors: 1) flow control, which involves managing the volume and intensity of peak storm water flows and reducing the high concentration of pollutants that result from high water flow; 2) pollutant removal though physical or biochemical processes; and 3) pollutant source reduction, which requires controlling the amount of pollutants that enter the MS4. Id. at 5-1, 5-4, 5-6.

(238) URBAN BMPs, supra note 13, at 5-51.

(239) BMP REMOVAL EFFICIENCIES, supra note 219, at 18 ("Percent removal alone, even where results are statistically significant, often does not provide a useful assessment of BMP performance."). EPA evaluated the Phase I program using small sample surveys and case studies developed by NRDC. PHASE I REPORT, supra note 9, at 3-6. These studies provide a limited summary of data collected on BMP effectiveness. For a more in-depth look at particular BMPs according to type and location, and for technical information, consult the American Society of Civil Engineers (ASCE) BMP database. URBAN WATER RESOURCES COUNCIL, NATIONAL STORMWATER BEST MANAGEMENT PRACTICES (BMP) DATABASE, at http://www.bmpdatabase.org (last modified Jan. 29, 2001).

(240) STORMWATER STRATEGIES, supra note 14, at 72.

(241) PHASE I REPORT, supra note 9, at 3-23.

(242) Id. at 3-17. However, Prince George's County, Maryland estimated that changing zoning practices that decreased the percentage of imperviousness in new development and the use of infiltration BMPs resulted in the local stream maintaining current conditions, which is an estimated reduction in runoff of 75-95% and a reduction of pollutant loads of nutrients and metals of over 80%. Id. at 3-26.

(243) See generally STORMWATER STRATEGIES, supra note 14 (describing case studies of nonstructural controls).

(244) URBAN BMPS, supra note 13, at 5-49 to 5-50.

(245) STORMWATER STRATEGIES, supra note 14, at 76.

(246) Id. at 79.

(247) PHASE I REPORT, supra note 9, at 3-24. Minneapolis Parks and Recreation, the Minnesota Department of Agriculture, and the Hennepin County branch of the University of Minnesota Extension Service cooperated in the Lake Harriet Watershed Awareness Project, which focused on educating the watershed's 6000 residents about the effects of lawn care on the health of the lake and encouraging alternative practices. The study measured the levels of eight chemical compounds found in ninety-five percent of pesticide detections for the watershed, four of which were agricultural pesticides not used in the watershed. Over the course of the project, storm water samples showed a concentration reduction of over fifty percent of lawn-care chemicals following education efforts, while the concentrations of agricultural chemicals did not decrease. STORMWATER STRATEGIES, supra note 14, at 232-33.

(248) URBAN BMPS, supra note 13, at 5-49.

(249) PHASE I REPORT, supra note 9, at 3-24.

(250) Id. at 3-18.

(251) URBAN BMPS, supra note 13, at 5-49; PHASE I REPORT, supra note 9, at 3-24.

(252) STORMWATER STRATEGIES, supra note 14, at 84.

(253) Id.

(254) PHASE I REPORT, supra note 9, at 3-24.

(255) Id. The Boston MS4 identified and eliminated several illicit cross-connections, the largest of which was discharging a daily average of 70,000 gallons of raw sewage into a storm sewer that drained directly into the Charles River. Id.

(256) Most MS4s have not attempted to estimate the reduction in pollutant loads due to removal of illicit discharges. Portland's efforts are unusual in this respect. Id. at 3-18.

(257) STORMWATER STRATEGIES, supra note 14, at 76.

(258) Id. at 79.

(259) Id.

(260) PHASE I REPORT, supra note 9, at 3-18. For a more detailed description of potential pollutant removal efficiencies for various structural BMPs, see URBAN BMPs, supra note 13, at 5-50 to 5-85.

(261) PHASE I REPORT, supra note 9, at 3-18.

(262) Id. Structural BMPs require regular upkeep to maintain maximum efficiency, such as removal of accumulated sludge and sediment. Id.

(263) Id.

(264) Id.

(265) Bioassessment is a technique used to determine the health of the biological community and the quality of the aquatic habitat in the receiving stream. URBAN BMPS, supra note 13, at 5-46.

(266) PHASE I REPORT, supra note 9, at 3-19. Specifically, Austin reported removal of 36,400 to 50,000 pounds per year of sediment, 55 to 275 pounds of nitrate/nitrite, 55 to 2000 pounds of phosphorus, 5 to 50 pounds of lead, and 10 to 150 pounds of zinc. Id.

(267) Id.

(268) Id.

(269) Id.

(270) URBAN BMPS, supra note 13, at 5-59. A wet pond is a type of retention basin that consists of a permanent pool of water. The basin collects the storm water and retains it, allowing pollutants to settle out and water to filter into the soil below. The ponds can also have aesthetic and recreational value. STORMWATER STRATEGIES, supra note 14, at 263.

(271) PHASE I REPORT, supra note 9, at 3-8.

(272) Id. at 3-29 ("There are no mechanisms in place to directly demonstrate the effectiveness of the Phase I MS4 program on improving water quality at a national level.").

(273) Id.

(274) "It is very difficult to design an appropriate way to measure the success of SWM programs. Because of the difficulties in measuring problems and in quantifying the benefits of programs, standard monitoring techniques cannot well evaluate program success." WASHINGTON PERMIT CLARIFICATIONS, supra note 128, at 2.

(275) PHASE I REPORT, supra note 9, at 3-25.

(276) Id.

(277) Id.

(278) URBAN BMPs, supra note 13, at 5-85. As a part of the BMP database development, ASCE and EPA have recently developed standardized statistical methods and data collection protocols, which if implemented, could facilitate study comparisons. BMP REMOVAL EFFICIENCIES, supra note 219, at 18. However, these protocols relate to measuring pollutant removal efficiencies, not ambient water quality. Id.

(279) Id. at 18; see PHASE I REPORT, supra note 9, at 3-29 (suggesting that bioassessment techniques instead of pollutant-specific monitoring might better measure the effects of storm water).

(280) PHASE I REPORT, supra note 9, at 3-30 ("[T]here are no minimum performance standards currently set for permitted entities.... Without such measures, it is difficult to report on a regional or national level what the benefits of Phase I program elements actually are.").

(281) STORMWATER STRATEGIES, supra note 14, at 4. A "measurable goal is an observable, preferably numerical, viable target or objective selected by the municipality or other project manager that guides--and measures the success of--the selection, design, operation, or maintenance of the stormwater pollution management measure(s)." Id. Examples of measurable goals include requirements such as sending educational information to each household in the municipality, reducing pollutant loads by a set percentage for particular parameters, mandating that post-development storm water flow mimic pre-development flow, increasing the diversity and number of aquatic species or habitat, or specifying particular land use controls for development projects that reduce storm water impacts. Id.

(282) Eisen, supra note 23, at 64 n.298.

(283) Defenders of Wildlife v. Browner, 191 F.3d 1159, 1165 (9th Cir.) amended by 197 F.3d 1035 (9th Cir. 1999).

(284) Dianne K. Conway & Daniel S. Evans, Salmon on the Brink: The Imperative of Integrating Environmental Standards and Review on an Ecosystem Scale, 23 SEATTLE U. L. REV. 977, 982 (2000).

(285) Id. (stating that traditional programs, such as the CWA NPDES permit program, focus on individual property owners or dischargers and relies on the belief that compliance with those programs will result in overall watershed health).

(286) URBAN BMPS, supra note 13, at 5-85.

(287) Pub. L. No. 106-554, 114 Stat. 2763 (Dec. 21, 2000) (to be codified at 33 U.S.C. [sections] 1274). 288 Conway, supra note 284, at 1009.

(289) Roberts, supra note 65, at 649.

(290) Memorandum from Robert Perciasepe, Assistant Administrator, to Regional Administrators Regional Water Division Directors (August 8, 1997), available at http://www.epa.gov/OWOW/tmdl/policy.html (last modified Feb. 12, 1998).

(291) Conway, supra note 284, at 1010.

(292) Defenders of Wildlife v. Browner, 191 F.3d 1159, 1166-67 (9th Cir.) amended by 197 F.3d 1035 (9th Cir. 1999).

(293) Interim Permitting Approach for Water Quality-Based Effluent Limitations for Storm Water Permits, 61 Fed. Reg. 43,761, 43,761 (Aug. 26, 1996).

(294) See, e.g., Michael P. Healy, Still Dirty After Twenty-Five Years: Water Quality Standard Enforcement and the Availability of Citizen Suits, 42 ECOLOGY L.Q. 393, 396 (1997) (arguing that "the Act has not been implemented and administered in a manner that ensures that [water quality standards] are met"); Roberts, supra note 65, at 649-54 (describing the lack of EPA and state enforcement of the TMDL program, until a series of citizen-suits compelled EPA to enforce the program).

(295) An MS4 ordinarily is in compliance with its NPDES permit--and thus the CWA--by implementing its SWMP in good faith and meeting implementation schedules. An MS4 that fails to do this much would be subject to a citizen-suit. However, the good faith implementation of a BMP schedule is quite distinct from ensuring attainment of water quality standards.

(296) URBAN BMPS, supra note 13, at 5-53; PHASE I REPORT, supra note 9, at 3-30.

(297) BMP REMOVAL EFFICIENCIES, supra note 219, at 18.

STACY D. HARROP, Editor in Chief, Environmental Law, 2001-2002; J.D. and Certificate in Environmental and Natural Resources Law expected May 2002, Northwestern School of Law of Lewis & Clark College; B.A. 1996, cum laude, University of Portland. The author wishes to thank Professor Craig N. Johnston of Northwestern School of Law for his guidance in completing this Chapter. The author would also like to thank Peter M. Lacy, 2000-2001 Ninth Circuit Review Editor, Environmental Law, for his excellent editing comments and encouragement.