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.
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."
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.
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."
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."
"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.