The Water Report: Water Rights, Water Quality and Water Solutions in the West Issue 17

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Issue #I7 The Water Report Urban Stormwater BIA Appeal Browner Industrial V. Municipal "Impossibility" CWA Scope Intent Court Of Appeal Ruling CONGRESS SPECIFIED MEP, BUT RELIEVED AGENCIES OF OBLIGATION TO FOLLOW IT After the SWRCB blessed the regional board's untethering of the MS4 program from the realm of practicability, BIA, joined by the City of San Marcos and others, pressed for MEP -based relief in state court. Following an unfavorable trial court ruling, the forum shifted to the court of appeal. The California Court of Appeal relied on authority earlier rejected by the United States Ninth Circuit Court of Appeal as having any relevance to the MS4 program, and marginalized congressional design by limiting the impact of the urban runoff provision to a paperwork reduction enactment. See, Building Industry Association of San Diego et al., v. State Water Resources Control Board et al. 124 Cal.App.41" 866 (2004). Specifically, the Ninth Circuit in Browner had severed the 1987 urban runoff provision [i.e., CWA 402(p)(3)(B)] from the earlier- enacted Section 301(b)(1)(C) — (endnote 2.6). This severance is critical: Section 301(b)(1)(C) is the seminal CWA provision relied upon by permit writers to impose water quality standards. Failing to recognize this severance, the Court of Appeal in BIA v. SWRCB cited to Section 301(b)(1)(C) to support the proposition that in 1987 Congress did not eliminate the discretion to enforce water quality standards. Nor did the Court of Appeal appreciate that the plaintiffs, BIA, et. al., were not arguing for the elimination of that discretion — rather, they argued the discretion was informed by MEP. Forced to explain why Congress went to such lengths in 1987 to set up separate permitting requirements for industrial stormwater (governed by Section 402(p)(3)(A)) and municipal storm water (Subsection (B) of 402(p)(3)), the Court of Appeal found that Congress' "primary point" was to eliminate the procedural burden of having to secure separate permits for each storm drain pipe in each public storm drain system. Never explained by the Court was why Congress bothered including the MEP provision at all, since a preceding provision (Section 402(p)(3)(B)(i)) dealt with the administrative issue, allowing MS4 permits to be issued on a "system- or jurisdiction -wide basis." Notwithstanding its holding that federal law grants permit writers discretion to include "appropriate" — but non -MEP — provisions in MS4 permits, the Court of Appeal reserved for later determination whether compliance with water quality standards was possible in particular circumstances. It found that BIA's impossibility arguments were premature. THE COURT STATED IN PERTINENT PART: "We question whether many of Building Industry's `impossibility' arguments are premature on the record before us.... [T]he Permit allows the Regional Water Board to enforce water quality standards during the iterative process, but does not impose any obligation that the Board do so. Thus, we cannot determine with any degree of certainty whether this obligation would ever be imposed, particularly if it later turns out that it is not possible for a Municipality to achieve that standard." The Court of Appeal decision certainly should not be interpreted as settling to what extent, or even whether, federal law allows permit writers to go beyond MEP in urban runoff permits. The Court blessed extra -MEP provisions in an abstract sense, but did not find any particular permit provisions as exceeding MEP. The decision affects only a handful of MS4 permits, and should not encourage other permit writers to similarly disregard clear congressional purpose. THE 1987 CLEAN WATER ACT AMENDMENTS & MEP CONGRESS ACTED TO PREVENT FINANCIAL HARM TO MUNICIPALITIES CWA Section 402(p), the 1987 legislative provision regulating stormwater, was preceded by controversy and uncertainty. The US Environmental Protection Agency (EPA) originally had taken the view that most stormwater was not within the scope of CWA jurisdiction (27) — a view challenged in the United States Court of Appeal, District of Columbia Circuit.(28) EPA was directed by the D.C. Circuit to promulgate regulations dealing with stormwater. (29) Subsequent draft regulations were challenged as well.(30) Ultimately, Congress spoke directly on the subject, amending the CWA by enacting the Water Quality Act of 1987, adding Section 402(p). Section 402(p) reflected a sensitivity to the enormous challenges and difficulties faced by municipalities in regulating stormwater. Referring to the controversy regarding municipal stormwater, Congressman Rowland (3 1) stated during the House debates that application of the pre -1987 NPDES program to urban runoff, "would be financially devastating to many of our local governments. "(32) Regarding the new approach of Section 402(p)(3)(B), Congressman Roland explained: "The conference agreement, which includes a provision exempting certain storm water runoff from the NPDES permitting process takes a giant step toward reducing the immense regulatory burden being proposed by the EPA. As a result, the cost to Local governments for complying with the act will be Copyright@O 2005 Envirotech Publications; Reproduction without permission strictly prohibited.