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Arizona Cities Win Stormwater Fight.

Court Says Congress Intended To Protect Municipal Interests

The 9th Circuit Federal Court of Appeals handed cities a major victory in upholding EPA-issued municipal stormwater permits that do not include numerical effluent limitations for four Arizona cities -- Mesa, Phoenix, Tempe and Tucson -- and Pima County. In rendering the decision in Defenders of Wildlife and the Sierra Club v. Carol M. Browner, the Court sided with the local governments and the amici (including NLC) against the Sierra Club, Defenders of Wildlife and the U.S. Environmental Protection Agency on the critical issue of effluent limitations.

The implications of the decision for municipalities is the Court's clarification that Congress did indeed establish a less stringent standard for municipal stormwater runoff than is applied to industrial discharge. NLC has long maintained that, in amending the stormwater program in 1987, Congress specifically and purposely crafted provisions applicable to municipal stormwater runoff that are different from those applicable to similar runoff from industrial facilities.

NLC believes these distinctions clearly indicate that Congress recognized the differences between municipal and industrial runoff and understood the difficulty of addressing pollutants from diverse, often uncontrollable -- and in some instances -- unknown or inaccessible sources and activities that Would confront the nation's local governments.

The Court agreed and in rendering its opinion stated that the Clean Water Act "unambiguously demonstrates that Congress did not require municipal stormwater discharges to comply strictly" with the Clean Water Act's provisions regulating discharges to waters of the United States. In elaborating the Court's rationale, the judges said, "Congress expressly required industrial stormwater discharges to comply with" the effluent limitation provisions of the law. "Congress chose not to include a similar provision for municipal Stormwater discharges."

Citing judicial precedent, the Court indicated 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.

Furthermore, the Court said, "[a]pplication of that principle is significantly strengthened here because [the law] is not merely silent ... but replaces the [effluent limitation] requirements ... with the requirement that municipal stormwater dischargers `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 [of EPA] ... determines appropriate for the control of such pollutant.'"

The Court also, however, upheld EPA's authority under the Clean Water Act to "determine other provisions ... appropriate for the control of ... pollutants" in municipal stormwater runoff.

It is this last phrase, granting EPA the discretion to "determine appropriate" controls, that may yet force cities to meet standards identical to those of industrial dischargers. NLC's Counsel in the case, however, believes such requirements can only be imposed to the "maximum extent practicable," a concept that includes consideration of economic feasibility.

Details: The 10-page decision may be accessed on the Internet at http://www.ce9.uscourts.gov/.
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Article Details
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Author:Kocheisen, Carol
Publication:Nation's Cities Weekly
Article Type:Brief Article
Geographic Code:1U8AZ
Date:Sep 27, 1999
Words:491
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