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By Amena Saiyid
Dec. 19 — Environmental groups have asked the U.S. Court of Appeals for the Ninth Circuit to order the Environmental Protection Agency to comply with an 11-year-old ruling by the court to toughen regulations for urban and suburban stormwater runoff and to determine whether regulation of stormwater runoff from forest roads is necessary.
In a lawsuit filed late Dec. 18, the Natural Resources Defense Council and the Environmental Defense Center allege the EPA ignored a 2003 Ninth Circuit ruling that required the agency to strengthen its 1999 regulations to govern stormwater runoff from cities and suburbs with a population of less than 100,000.
They claim the same ruling also required the EPA to determine the necessity of regulating other sources of stormwater, such as forest roads (Envtl. Def. Ctr., Inc. v. EPA,, 344 F.3d 832, 57 ERC 1039 (9th Cir. 2003)).
The groups said the EPA’s failure to address the court’s 2003 remand order was “especially troubling” because Congress required the EPA to complete these rules by 1993, as required by the 1987 amendments to the Clean Water Act that codified regulation of stormwater discharges.
“Yet, more than eleven years after this Court found the rule unlawful and remanded it to the agency, EPA has yet to comply with the Court’s remand order,” the groups said, adding that meanwhile, the state permitting agencies have continued to rely on the invalidated regulations for small municipal separate stormwater sewer systems (MS4).
They noted that federal courts have authority to issue writs of mandamus directing agencies to comply with prior orders, “and this Court should now exercise that authority.”
“We want the court to require the EPA to propose a rule for urban runoff within six months of the court ruling and a final rule six months after the proposed rulemaking,” Larry Levine, NRDC senior attorney, told Bloomberg BNA Dec. 18.
At issue are the 1999 regulations governing Phase II stormwater discharges from MS4s operated by cities and suburbs with populations of less than 100,000.
These regulations allowed MS4s to fulfill their general National Pollutant Discharge Elimination System permit obligations by merely filing notices of intent to discharge stormwater runoff without any subsequent reviews by either the EPA or the state permitting authority to enforce compliance.
Stormwater runoff is one of the most significant sources of water pollution in the nation, transporting suspended metals, sediments, algae-promoting nutrients (nitrogen and phosphorus), floatable trash, used motor oil, raw sewage, pesticides and other toxic contaminants into streams, rivers, lakes and estuaries, EPA has said.
The agency sidestepped the question of ignoring the 2003 ruling in its response to Bloomberg BNA Dec. 19.
“The EPA continues to believe that stormwater discharges pose a serious threat to the nation's water bodies and that it needs to take concrete steps to strengthen the stormwater program,” the agency said in a statement.
Specifically, the agency said it plans to strengthen MS4 permits as they come up for renewable using existing requirements. The agency said it is promoting green infrastructure to manage stormwater and encouraging the use of integrated planning to manage wastewater and stormwater and offering technical assistance to communities to build robust programs.
The groups said in the petition that the Ninth Circuit objected to the EPA's Phase II regulations for MS4s, terming them an “impermissible self-regulatory system” because it allowed permittees to decide, without any oversight from the regulatory authority, which pollution control measures to include in their permits.
The Ninth Circuit said the general NPDES permit for MS4s violated the Clean Water Act because stormwater permits require controls to reduce runoff to the maximum extent practicable.
Levine said the court didn't direct the agency to begin regulating forest roads under NPDES permits. Rather, the Ninth Circuit remanded the issue to the EPA to determine whether forest roads need to be regulated under Sec. 402(p)(6).
That section of the law required the EPA to establish stormwater regulations based on studies it conducted on identifying discharge sources, determining maximum extent practicable controls and establishing procedures and methods for controlling that runoff.
The appellate court left it up to the EPA to either accept the arguments by the environmental groups to regulate forest roads in whole or in part or reject them on the basis of valid reasons.
Levine referred to the 2013 U.S. Supreme Court ruling that upheld the EPA's right not to require NPDES permits for logging roads ((Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 185 L. Ed. 2d 447, 76 ERC 1001 (2013).
“We aren't asking that the EPA regulate stormwater discharges from forest roads under an NPDES permit,” Levine said. “That issue has been addressed separately. The EPA needs to decide if not by NPDES permits then by some other scheme.”
To contact the reporter on this story: Amena H. Saiyid in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Larry Pearl at email@example.com
The joint lawsuit filed by the Environmental Defense Center and the NRDC is available at http://switchboard.nrdc.org/blogs/llevine/2014-12-18_Petition_for_Writ_of_Mandamus.new_cert.pdf.
The U.S. Court of Appeals for the Ninth Circuit ruling in Envtl. Def. Ctr., Inc. v. EPA, is available at http://www.bloomberglaw.com/public/document/Envtl_Def_Ctr_Inc_v_EPA_344_F3d_832_57_ERC_1039_9th_Cir_2003_Cour.
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