Refusal to Regulate Urban Stormwater Lands EPA in Hot Water

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By Amena H. Saiyid

Refusal to regulate stormwater runoff from parking lots and buildings at hospitals, universities, big box stores and factories in Baltimore and Los Angeles has landed the EPA in hot water.

Environmental groups sued in two separate federal appeals courts this week saying the Environmental Protection Agency should exercise its authority under the Clean Water Act to require National Pollutant Discharge Elimination System permits to regulate the runoff from these sites, which are currently not regulated at all ( Los Angeles Waterkeeper v. Pruitt , 9th Cir., No. 17-70570, 2/27/17 ; Blue Water Baltimore v. Pruitt , 4th Cir., No. 17-1258, 2/28/17 ).

The EPA said discharge permits specific to these particular entities aren’t necessary because a number of tools already exist to address stormwater on a broader scale, such as discharge permits that regulate municipal separate storm sewers or those that have been issued as part of a total maximum daily load, a cleanup plan of sorts, for a particular water body. In addition, states have their own stormwater regulations for redevelopment and new development.

The case before the U.S. Court of Appeals for the Fourth Circuit concerns the stormwater problem in Baltimore’s Back River. The U.S. Court of Appeals for the Ninth Circuit has been asked to review the issue in Los Angeles’ Dominguez Channel and Los Cerritos Channel.

Becky Hammer, staff attorney for the Natural Resources Defense Council, one of the groups bringing the case, admits that the issue is probably more appropriately addressed at the district court level.

Since the petition for review doesn’t fall squarely under the seven categories of Clean Water Act programs that a federal appeals court is authorized to review under the Clean Water Act, Hammer said they plan to file lawsuits in federal district courts as well and have filed their 60-day notices of intent to sue. “We think the cases belong in the district court though, but we wanted to cover our bases just in case.”

Stormwater runoff contains toxic metals, sediment that degrades the quality of receiving waters. “It is the one of the fastest growing sources of water pollution, and the primary cause of water pollution in urban areas like Baltimore and Los Angeles,” NRDC staff attorney Becky Hammer, told Bloomberg BNA March 1.

Programs Already Exist

“It isn’t fair” for the EPA to rely solely on municipalities to be responsible for cleaning up the problem, Hammer said. She said this approach of relying on cash-strapped municipalities isn’t working because these cities and towns most often don’t have control or access to the private land where the runoff is arising. “So what we see is slow or no progress,” she said.

Hammer said it is time to try a different approach using the authority that resides within the Clean Water Act. That means requiring the sites that are causing a significant proportion of the pollution problem to take steps to reduce their runoff.

In the Ninth Circuit, the NRDC and American Rivers have joined the Los Angeles Waterkeeper and in the Fourth Circuit the two groups have joined Blue Water Baltimore.

Also Filing in District Courts

The coalition’s lawsuits were filed around the same time the D.C. Circuit tossed out a court case, saying it lacked jurisdiction to decide whether EPA’s refusal to apply an appellate ruling on banning controversial wastewater practices was legal. The court said that question was better handled in district courts ( Ctr. for Regulatory Reasonableness v. EPA , D.C. Cir., No. 14-1150, 2/28/17 ).

The U.S. Supreme Court has been asked to resolve this same question of court jurisdiction as it relates to the currently stayed Clean Water Rule ( Nat’l Ass’n of Mfrs. v. DOD, U.S., No. 16-299, cert granted 1/13/17 ). The question is whether the water rule, which doesn’t directly fall in the seven categories of Clean Water Act requirements, can be reviewed by a federal appeals court.

“It’s very confusing,” Hammer said.

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

The petition for review filed in the U.S. Court of Appeals for the Ninth Circuit is available at http://src.bna.com/mDu

The petition for review filed in the U.S. Court of Appeals for the Fourth Circuit is available at http://src.bna.com/mDt

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