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Ninth circuit upholds bulk of stormwater rule.

Section 402(p) of the Clean Water Act, added by the 1987 Clean Water Act amendments, outlined an incremental approach to the development of stormwater discharge permits. After a lengthy rulemaking, EPA promulgated a final rule in November of 1990. In early 1991, the Natural Resources Defense Council (NRDC) brought a broad-based judicial challenge of the EPA rule, filed in the Ninth Circuit Court of Appeals.

Among other issues, NRDC attached the rule for failing to establish sufficient substantive controls for large municipal stormwater systems.

Municipal Issues in the Case

1. The "MEP" [Maximum Extent Practicable] standard. The 1987 amendments prescribed a new standard for municipal stormwater dischargers, requiring permits that would "effectivity prohibit" non-stormwater discharges to storm sewers and reduce pollutants "to the maximum extent practicable" based on management practices, control techniques and other requirements deemed appropriated by EPA or the state permit issuing authority.

NRDC attached EPA's rule for failing to establish substantive controls which would achieve absolute prohibition of non-stormwater discharges, and which, in NRDC's view, should have spelled out in detail the permit provisions to be imposed pursuant to the "MEP" standard in the Act.

EPA, in defending the suit and the National Association of Flood and Stormwater Management Agencies (NAFSMA), as an intervenor supporting EPA's position, both argued that the language of the statute required only the development of a permit application and issuance process, and that's what the 1990 regulations rightfully accomplished. The Act did not require comprehensive regulations detailing the "MEP" standard, but rather left the development of individualized control programs to the discretion of the permit writer, working jointly with the municipal applicant.

NAFSMA also appointed out the need for flexibility in the development of appropriate stormwater programs, taking into account site-specific conditions and needs in different local communities. A subsidiary aspect of NRDC's challenge, involved the screening and sampling requirements imposed on municipalities to detect non-stormwater discharges into their storm sewers.

Fortunately, the Court agreed in full with the EPA and NAFSMA position. In fact, the Court dismissed NRDC's "MEP" arguments virtually out of hand. Without addressing NRDC's arguments in any real detail, the Court relied on the statutory language in the Clean Water Act to find that Congress "did not mandate a minimum standards approach or specify that EPA develop minimal performance standards." The Court noted, "Congress could have written a statute requiring stricter standards, and it did not." With respect to the testing requirements for the detection of non-stormwater discharges, the Court found that EPA has a "reasoned explanation" for its regulatory choices, and the Court chose to defer to EPA on technical matters of that nature.

The Court did note that its rejection of NRDC's challenge relates only to the November 1990 regulations themselves.

2. Definition of Municipal Separate Storm Sewer System.

Section 402(p) of the Clean Water Act requires EPA to begin the permit application issuance process with respect to large and medium storm sewer systems, serving populations of 250,000 or more, and from 10,000 to 250,000. NRDC challenged several aspects of the rule as it relates to these population size distinctions.

NRDC objected to EPA's reliance on "incorporated" municipalities, and its exclusion of incorporated towns of less than 100,000 from the population count of larger urbanized counties.

The Court apparently found this aspect of NRDC's challenge a somewhat closer call than the "MEP" argument, devoting considerable discussion to it in the opinion. The result, however, was the same. The Court found the statutory language to be ambiguous, thus affording EPA some latitude in developing regulatory definitions. The Court found that EPA had investigated a number of options, appropriately considered public comments filed, and made a rational choice based on the available alternatives.

3. Small Construction Sites

NRDC challenged the exemption for construction sites of less than five acres. While principally an issue for the construction industry, it does have implications for municipalities in their conduct of industrial-type activities. EPA had originally proposed an exemption for one acre sites only, and then expanded that to five in the final rule. The Court held that EPA's rationale for increasing the size cutoff was inadequate. The Court also rejected an EPA argument that it was free to create exemptions "that were de minimis in nature."

4. Group Applications

Some municipalities are involved in group applications by virtue of some municipal/industrial activities. NRDC argued in the case that EPA's approval or disapproval of Part 1 group application had the effect of a rule, and therefore should not be made without public notice and comment. The Court disagreed.

Robert Saner is an attorney with the Washington, D.C. law firm of White, Verville, Fulton & Saner and serves as counsel to the National Association of Flood and Stormwater Management Agencies.
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Article Details
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Author:Saner, Robert J.
Publication:Nation's Cities Weekly
Date:Jun 22, 1992
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