Municipal Storm Water Discharges Not Required To Meet Same Standards As Industrial Storm Water Discharges

Sometimes it pays to intervene. On September 15, 1999, the United States Court of Appeals for the Ninth Circuit issued an opinion upholding the position of the Intervenors. The case was Defenders of Wildlife v. Browner, ______ F.3d _____ (9th Cir. 1999) and the Intervenors were five cities in Arizona that had received NPDES permits for their municipal stormwater discharges. The permits contained Best Management Practices that EPA and Arizona said would allow the discharges to meet Arizona's water quality standards. The Defenders of Wildlife and the Sierra Club appealed to the Environmental Appeals Board ("EAB") claiming that Clean Water Act required the permits to include numerical effluent limitations to ensure compliance with water quality standards. When the EAB ruled that numerical limits were not required to ensure compliance, the petitioners appealed to the Ninth Circuit.

The Court upheld the permits, but it did so by adopting, over the objections of EPA, the argument of Intervenors that municipal discharges of stormwater are not required to strictly comply with water quality standards. It did so by looking at the plain language of the Clean Water Act, which creates a double standard — one for industrial stormwater discharges and another for municipal stormwater discharges. "As is apparent, Congress expressly required industrial storm-water discharges to comply with the requirements of 33 U.S.C. §1311. … In other words, industrial discharges must comply strictly with state water-quality standards. Congress chose not to include a similar provision for municipal storm-water discharges. Instead, Congress required municipal storm-water discharges 'to reduce the discharge of pollutants to the maximum extent practicable.' …"