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July 15, 2005 The Water Report <br />Section 402(P): Practicability For Municipal Discharges <br />restrained. Under current law, municipalities would be required to obtain permits for each of the <br />In enacting the 1972 CWA, Congress was relying on the future "invention [of] new and imaginative <br />iii[ Urban <br />millions of storm water discharge points across the country at a cost which would be almost impossible <br />StOP1YlW1�E'r <br />to meet per permit application. It does not take a whiz at math to realize that our cities and towns were <br />- <br />facing massive capital outlays; the cost could have easily exceeded $8.5 billion in expenditures for <br />Feasibility <br />compliance with the proposed EPA regulations for storm water discharge." [132 Cong. Rec. 31968 <br />(Oct. 15, 1986)] <br />Legislative <br />rt <br />The Cou in BIA v. SWRCB would have one believe that the "cost ... per permit application" that <br />History <br />would be "almost impossible to meet" corresponded to the paperwork involved in the permit application. <br />This interpretation ignores the fact that the legislative history refers to billions of dollars in "capital <br />outlays" that needed to be "restrained" — not just administrative processing costs. Congress made the <br />policy choice in 1987 to grant relief to municipal permittees by differentiating between the regulation of <br />urban runoff, on the one hand, and industrial stormwater, on the other. Congress subjected the latter to <br />pre- existing CWA water quality standards -based provisions, while specifying a new practicability <br />standard for municipal stormwater. <br />Copyright© 2005 Envirotech Publications; Reproduction without permission strictly prohibited. 7 <br />Section 402(P): Practicability For Municipal Discharges <br />In enacting the 1972 CWA, Congress was relying on the future "invention [of] new and imaginative <br />developments that will allow us to meet the objectives stated in our bill. "(33) The CWA was a "tough <br />bill" designed to "press the technological threshold of invention. "(34) <br />Section 301(b)(1)(C), the core CWA technology- forcing provision, requires whatever "stringent <br />Feasibility <br />limitation[s]" are "necessary to meet water quality standards" — without any express reference to <br />technological or economical feasibility. Prior to 1987, Section 301(b)(1)(C) applied to all NPDES <br />permits, without exception.(35) When in 1987 Congress added stormwater to the NPDES permitting <br />program, Congress specified that Section 301(b)(1)(C), applied only to industrial stormwater. <br />SECTION 402(P)(3)(A) STATES IN PERTINENT PART: <br />"Permits for discharges associated with industrial activity shall meet all applicable provisions of this <br />section and section 1311 [Clean Water Act Section 301] of this title. "(36) <br />However, Section 402(p)'s standard for municipal stormwater is different from the one specified for <br />industrial stormwater, and makes no mention of Section 301. <br />RATHER, SECTION 402(P)(3)(B) STATES IN RELEVANT PART: <br />Municipal <br />"(B) Municipal discharge Permits for discharges from municipal storm sewers ... (iii) shall require <br />Standard <br />controls to reduce the discharge of pollutants to the maximum extent practicable, including <br />management practices, control techniques and system, design and engineering methods, and such other <br />provisions as the Administrator or State determines appropriate for the control of such pollutants. "(37) <br />The structure of Section 402(p) is clear: Congress continued the pre- existing technology- forcing <br />approach for industrial stormwater, but mandated an alternative, MEP -based approach for municipal <br />stormwater. <br />Agency Discretion To Impose Technology- Forcing On Municipalities Not Created <br />Technology- <br />Technology- forcing is a "drastic remedy" "designed to force regulated sources to develop pollution <br />Forcing <br />control devices that might at the time appear to be economically or technologically infeasible. "(3 8) <br />Because technology forcing is such a "stiff requirement, "(39) courts have recognized it only when <br />the statute and legislative history are uncommonly explicit, such as where the "statutory scheme and <br />legislative history ... demonstrate irrefutably" that "economic or technological infeasibility" are not to <br />be considered.(40) Applying these principles to the 1987 urban runoff provision, there is nothing on the <br />face of Section 402(p)(3)(B), nor is there anything in the legislative history, to the effect that agencies <br />may impose technology- forcing through MS4 permits. <br />The "Such Other Provisions" Clause Of Section 402(p)(3)(B)(iii) <br />CLAUSE IS MODIFIED BY MEP <br />The San Diego agency claimed it was free to impose technology forcing - no matter how <br />"financially devastating" or impossible to achieve - under the last clause of Section 402(p)(3)(B)(iii).- <br />Rules <br />(endnote 41) This clause allows the imposition of "such other provisions as the Administrator or State <br />of <br />determines appropriate for the control of such pollutants." However, the "such other provisions" clause <br />Grammar <br />of Section 402(p)(3)(B)(iii) unambiguously is modified by that section's practicability standard. <br />After the MEP phrase of Section 402(p)(3)(B)(iii), Congress continues, putting in the participle <br />"including" for the purposes of laying out various kinds of MEP controls. Everything following the <br />participle "including," under basic rules of grammar, must be modified by what precedes it, which is the <br />MEP phrase. <br />Copyright© 2005 Envirotech Publications; Reproduction without permission strictly prohibited. 7 <br />