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

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Issue #17 The Water Report Urban Stormwater MEP Court's Conclusion Statutory Rewrite? Browner Holding Separate Requirements Dicta: EPA Authority THE GRAMMATICAL PARSING OF SUBSECTION(B)(III) IS AS FOLLOWS: Permits for discharges from municipal storm sewers — (iii) shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including: (1) management practices, (2) control techniques and system, design and engineering methods, and (3) such other provisions as the Administrator or the State determines appropriate for the control of such pollutants. SENATOR DURENBERGER TbVICE PARSED SECTION 402(P)(3)(B) INTO TWO SENTENCES AS FOLLOWS: "Permits issued under this section ... shall require controls to reduce the discharge of pollutants to the maximum extent practicable. Such controls include managements practices, control techniques and systems, design and engineering methods, and such other provisions, as the Administrator determines appropriate for the control of pollutants in the storm water discharge. "(42) This parsing unequivocally shows that "such other provisions" is tethered to "such controls" — those controls being the ones that reduce pollutant discharges to this MEP. The Court of Appeal's conclusion that "such other provisions" is a second direct object of the verb "require." stands in stark contradistinction to this legislative history, which severs "such other provisions" from the verb "require." The Court of Appeal violated the rules of grammar by, in effect, erasing the third of the three participial modifiers and setting it up as a stand -alone subsection. Under the Court of Appeal's reading, MEP would be an alternative requirement for municipal dischargers, which could be replaced, in the sole discretion of the agencies, to require municipal permittees to meet Section 301(b)(1)(C) itself — that is, water quality standards — regardless of practicability. Such a constructive rewriting of the statute ignores the important difference Congress spelled out between the requirements imposed on industrial dischargers — subject to Section 301(b)(1)(C) — and the protective practicability standard for municipal dischargers. NINTH CIRCUIT UPHOLDS THE PRIMACY OF THE MEP STANDARD The Ninth Circuit has interpreted Section 402(p)(3)(B) three times, each time indicating that MEP is the exclusive federal standard governing municipal stormwater permits — as opposed to a minimum floor, above which agencies are free to impose standards regardless of practicability. The most important of these cases is the Ninth Circuit's Browner decision.(43) The Browner Court had before it MS4 permits from Arizona, where, based on "inclusion of ... `best management practices,' the EPA determined ... the permits ensured compliance with state water - quality standards. "(44) Importantly, the referenced BMPs primarily were pre - selected by permittees, prior to permit issuance; the permits basically required permittees to implement their own proposals.(45) The Court emphasized that, "Petitioners raised only the legal question whether the Clean Water Act (CWA) requires numeric limitations to ensure strict compliance with state water - quality standards. "(46) The Court summarized, "[f]or the reasons that follow, we deny the petition. "(47) The Browner petitioners argued that the Water Quality Act of 1987 is ambiguous regarding whether Congress intended municipalities to comply strictly with water quality standards. The Court rejected this argument, holding, "the Water Quality Act unambiguously demonstrates that Congress did not require municipal storm -sewer discharges to comply strictly with 33 U.S.C. § 1311(b)(1)(C) [Clean Water Act Section 301(b)(1)(C)]. "(48) The Court based its analysis on the separate requirements imposed on industrial and municipal dischargers. It concluded that Congress chose not to include a provision requiring compliance with water quality standards for municipal stormwater, and instead replaced Section 301 with the MEP standard. THE COURT HELD: "Congress' choice to require industrial storm -water discharges to comply with 33 U.S.C. § 1311, but not to include the same requirement for municipal discharges, must be given effect. When we read the two related sections together, we conclude that 33 U.S.C. § 1342(p)(3)(B)(iii) does not require municipal storm -sewer discharges to comply strictly with 33 U.S.C. § 13 11 (b)(1)(C)."(49) Since the Court held that numeric limitations were not required — the singular issue raised by the Browner petitioners — the case was effectively over. However, the Court proceeded in dicta (50) to address a contention raised by the municipal intervenors to the effect that not only is compliance with water quality standards not required, it is not permitted under Section 402(p)(3)(B). Responding to that contention, the Court noted Congress reserved discretion for EPA to determine what controls in municipal stormwater permits are appropriate. "Under that discretionary provision, the EPA has the authority to determine that ensuring strict compliance with state water - quality standards is necessary to control pollutants. The EPA also has the authority to require less than strict compliance with state water - quality standards. "(51) CopyrightO 2005 Envirotech Publications; Reproduction without permission strictly prohibited.