Status of Stormwater Regulation in California

• Publication year: 2014
• Author: By Melissa A. Thorme*

Status of Stormwater Regulation in California

By Melissa A. Thorme*

INTRODUCTION

Regulation of stormwater discharges in California is carried out under state law and the federal Clean Water Act, through joint Waste Discharge Requirements ("WDRs") and National Pollutant Discharge Elimination System ("NPDES") permits issued by the State under delegated authority from the United States Environmental Protection Agency ("EPA"). Reported case law on stormwater regulation is sparse since these discharges have been regulated for a shorter period of time than other point source discharges under the Clean Water Act. However, the absence of case law does not equate to an absence of either controversy or litigation. Indeed, within the last few years, one municipal stormwater case has gone to the United States Supreme Court twice. In addition, numerous citizen suits and enforcement actions have been brought against industrial and construction stormwater discharges. This article provides the regulatory history in general and particularly in California, and a prediction on future regulatory changes.

STORMWATER DEFINED

"Stormwater" is defined by federal regulation as "stormwater runoff, snow melt runoff, and surface runoff and drainage." 40 C.F.R. § 122.26(b)(13) (2014).

To manage stormwater drainage and prevent flooding in developed areas (i.e., residential neighborhoods and commercial and industrial areas), municipalities typically construct and operate a storm drain system (i.e., a Municipal Separate Storm Sewer System (hereinafter "MS4")). Stormwater flows into the MS4 and is thereafter discharged from one or many outfalls into surface waters.

Some MS4s are small and others are very large. For example, in Los Angeles County, the MS4 serves a geographic area greater than 4,000 square miles and includes more than 85 overlapping local governmental jurisdictions, establishing a vast network of catchments, gutters, channels, and pipes designed for drainage and flood control purposes to collect urban runoff and storm flows throughout the County.¹

As rain water or snow melt moves over the land, that water picks up natural and man-made pollutants and sends them through the MS4. Since weather is the source of stormwater, flows into MS4s, unlike those from traditional industrial and municipal wastewater point sources, are intermittent and often unpredictable in their duration and volume. Therefore, the municipality has no control over the quantity of the stormwater flow and also has little to no control of the nature and amounts of the pollutants picked up by the overland runoff.

Stormwater also runs across industrial and construction sites. Discharges from these sites may contain pollutants or excess sediment if not controlled. While the area making up industrial and construction sites may be smaller than the area composing a municipality's jurisdictional area, these operators also lack the ability to predict the exact volume and timing of flow, and for construction sites, the site itself is not a permanent location.

BRIEF HISTORY OF FEDERAL STORMWATER REGULATION

Since its amendment in 1972, the Federal Water Pollution Control Act (more commonly known as the "Clean Water Act" or "CWA"), 33 U.S.C. §§ 1251-1387 (2014), has prohibited the discharge of any pollutant to waters of the United States from a point source unless authorized by a National Pollutant Discharge Elimination System ("NPDES") permit. See 33 U.S.C. §§ 1311(a), 1342(a) (CWA §§ 301, 402(a) (2014)).

Initially, the NPDES permit program focused on the reduction of pollutants in discharges from industrial point sources and from publicly owned treatment works ("POTWs").² As a result, the EPA initially determined that all stormwater discharges were exempt from the requirements of the CWA.

However, in 1977, the Court of Appeals for the District of Columbia ruled that EPA could not exempt stormwater discharges from the NPDES permitting program under CWA section 402 because stormwater discharges constituted a discharge of pollutants from a point source.³ A "point source" is defined under the CWA as "any discernible confined, and discrete conveyance, including, but not limited to, any pipe, ditch, channel, . . . from which pollutants are or may be discharged." See 33 U.S.C. § 1362(14); 40 C.F.R. § 122.2.

Following this 1977 decision, EPA issued a series of proposed and final rules to regulate stormwater discharges, all of which were successfully challenged at the administrative level and in the courts. In response, Congress amended the CWA in 1987 to specifically authorize the regulation of stormwater discharges, creating separate and distinct regulatory programs for controlling pollutants in stormwater. See 33 U.S.C. § 1342(p) (CWA § 402(p)).

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Under CWA section 402(p), Congress established two different standards for the regulation of stormwater discharges—one for discharges of stormwater from areas of industrial activity, including construction activity, and one for municipal stormwater discharges from MS4s. Stormwater discharges associated with industrial activity are required to comply with NPDES permits containing the technology-based effluent limitations or more stringent water quality based effluent limitations set forth in CWA section 301. See 33 U.S.C. § 1342(p)(3)(A) (CWA §402(p)(3)(A)); 33 U.S.C. § 1311(b)(1)(A), (C)(requiring Best Practicable control Technology ("BPT") or "any more stringent limitation, including those necessary to meet water quality standards" by July 1, 1977); 33 U.S.C. § 1311(b)(2) (CWA § 301(b)(2)) (requiring Best Available Technology economically achievable ("BAT") for toxic pollutants and Best Conventional pollutant control Technology ("BCT") for conventional pollutants by March 31, 1989).

In non-stormwater and industrial stormwater NPDES permits, discharges must ensure compliance with applicable water quality standards.⁴ The CWA assigns primacy to the States for the adoption of water quality standards (the "uses" and the "criteria") and requires that water quality criteria be adopted by the States in accordance with federal and State laws. See 33 U.S.C. § 1313 (CWA § 303); see also Cal. Water Code § 13241 (2014) (requiring the State to adopt water quality "objectives," the State equivalent of "criteria" to protect beneficial uses). This requirement ensures that the States engage in the analytical processes mandated by State law so that the criteria adopted by the States are tailored to each State's own particular geographic and climatic conditions and legal requirements. A State-adopted water quality standard becomes the "applicable water quality standard" for purposes of regulation under the CWA, including for use in setting permit requirements, only after such standards are approved by the EPA. See 33 U.S.C. § 1313(c)(3) (CWA § 303(c) (3)).⁵

In contrast to having to meet the BAT/BCT and water quality standards-based requirements, municipal stormwater discharges from MS4s are regulated by NPDES permits that:

"(i) may be issued on a system- or jurisdiction-wide basis;
(ii) shall include a requirement to effectively prohibit non-stormwater discharges into the storm sewers; and
(iii) shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator or State determines appropriate for the control of such pollutants."

33 U.S.C. § 1342(p)(3)(B)(i)-(iii)(CWA § 402(p)(3)(B)(i)-(iii))(emphasis added).

The "Maximum Extent Practicable" language contained in section 402(p)(3)(B)(iii) is more commonly known as the "MEP" standard. MEP represents a different technology-based standard, requiring municipalities to pursue sound pollutant control techniques that are technically and economically feasible.

Importantly, the CWA does not prescribe water quality-based requirements for municipal stormwater. Water quality-based requirements differ from technology-based requirements, in that water quality-based requirements are set based on the ambient water quality of and the applicable water quality standards for a particular water body, while technology-based standards focus upon the water quality achievable by particular pollution control measures or technologies. This partial exemption for municipal stormwater is not unusual as the CWA also totally exempts some types of discharges from the permitting requirements of the Act. See 33 U.S.C. § 1342(l)(1)-(2)(CWA § 402(l)(1)-(2))(exempting agricultural return flows from irrigated agriculture and discharges of stormwater from mining operations or oil and gas production from the requirement to obtain an NPDES permit).

To comply with the MEP standard set forth under CWA section 402(p), the CWA has been interpreted to envision an iterative process whereby successive rounds of Best Management Practices ("BMPs") are implemented by municipalities to the MEP. See 40 C.F.R. § 122.44(k)(2). "Best Management Practices" are defined as "schedules of activities, prohibitions of practices, maintenance procedures and other management practices to prevent or reduce the pollution of waters of the United States. BMPs include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage." 40 C.F.R. § 122.2. The legislative history of the MEP language indicates that the relevant factors in determining whether MEP is met include technical feasibility, cost, and state and public acceptance. See Conf. Rep. on H.R. 2005, Superfund Amendments and Reauthorization Act of 1986, 132 Cong. Rec. H 9561 (Oct. 8, 1986)("In determining whether these technologies are practicable, the Administrator may take into account technical feasibility, cost, State, and public acceptance of the remedy, and other appropriate criteria. Where these remedies are not practicable or cost effective...