U.S. Appeals Court Upholds Runoff Rule

By Cat Lazaroff

WASHINGTON, DC, January 15, 2003 (ENS) - Small cities, counties and developers must protect waterways from stormwater pollution, a federal appeals court ruled Tuesday. The court found that the U.S. Environmental Protection Agency's stormwater program is constitutional, rejecting claims that the agency exceeded its authority by requiring cities and developers to decontaminate stormwater before discharging it into rivers, lakes and coastal waters.


Storm drains send runoff, often polluted with lawn chemicals, construction dirt and street litter, into streams and rivers. (Photo courtesy Alaska Fisheries Science Center)
The Ninth Circuit Court of Appeals in San Francisco also ruled that EPA's policy of allowing polluters to write their own permits is illegal.

The decision resulted from challenges brought by the Environmental Defense Center, a nonprofit public interest law firm that wanted to strengthen the stormwater rules, and by the National Association of Home Builders, the American Forest and Paper Association, and two Texas coalitions of cities and counties, all of which wanted to weaken the rules. The Natural Resources Defense Council (NRDC) intervened in the cases in May 2000.

"The court sent a very strong message yesterday," said Nancy Stoner, director of NRDC's clean water project. "First, municipalities and developers have to obey the law and clean up stormwater pollution to protect public health. Second, the EPA has to make sure cities and developers comply with the law. Polluters cannot police themselves."


A tributary draining a construction site deposits sediment laden water into a river. (Three photos courtesy U.S. Geological Survey)
The EPA stormwater rules stem from Clean Water Act amendments made in 1987. Phase I of the amendments, effective in 1990, covers industrial stormwater, large construction sites, and metropolitan areas with populations greater than 100,000.

Phase II Clean Water Act stormwater regulations apply to cities with populations below 100,000 and construction sites covering between one acre and five acres.

Three cases covering 22 separate constitutional, statutory, and procedural challenges to the Phase II rules were consolidated into the decision issued Tuesday. The court upheld the constitutionality of the rule, but ordered the EPA to review the regulations allowing polluters to design their own runoff control programs without review by the public or approval by the EPA.


Developers may use fences to keep dirt from construction sites from running off into storm sewers.
The appeals court ruled that discharges from municipal storm sewer systems and from construction sites must not be permitted until public notice is provided of the proposed discharge. The appeals court ordered the EPA to strengthen its rules by authorizing public hearings and state review of local plans.

Public review and comment will help ensure that runoff control plans meet the Clean Water Act requirement that pollution be reduced "to the maximum extent practicable," the court said.

"The court recognized the fallacy in EPA letting water dischargers determine for themselves whether they will meet federal clean water standards, instead of submitting to a complete agency and public review process," said Vicki Clark, counsel for the environmental groups.

"This case is a tremendous vindication of the public's right to participate in matters affecting our water quality," added Linda Krop, executive director and chief counsel of the Environmental Defense Center. "The community is affected by stormwater runoff, and is entitled to respond to threats posed by pollution in our creeks and ocean. It is important to ensure enforcement of water pollution laws before the violations occur, rather than after, in order to prevent further degradation of our coast."


Sediment ponds are often built to trap runoff water. Sediment settles to the bottom of these ponds rather than flowing into creeks and streams.
Urban stormwater runoff is the largest source of pollution in U.S. coastal waters and the second largest source of water pollution in U.S. estuaries, according to EPA data. It is also the largest known source of the bacterial contamination that closes thousands of beaches each year.

Stormwater pollution also increases flooding, erodes stream banks, and destroys wildlife habitat.

"There are a number of simple, commonsense things that cities and developers can do to keep stormwater pollution from closing our beaches, contaminating our drinking water sources, and devastating wildlife habitat," said Stoner. "Thanks to this ruling, our waters - and our health - will be protected."


Grass lined channels can be used to funnel and filter stormwater before it reaches storm drains. (Photo courtesy EPA)
The NRDC believes the ruling may also help to block other Bush administration attempts to circumvent the Clean Water Act.

"This ruling has implications for factory farms and other polluting industries as well as for stormwater dischargers," said Stoner. "The court held that allowing polluters to write their own permits behind closed doors violates the Clean Water Act. Given this ruling, there is no doubt that EPA's recent rule allowing factory farms to write their own animal waste plans is illegal."

To read the appeals court ruling, click here.