Small cities, towns, military bases, hospitals, ports, college and school campuses, fairgrounds, and other previously unregulated governmental entities statewide will soon be required to implement new programs to minimize water pollution resulting from runoff of rain and snowmelt.
California’s State Water Resources Control Board (“State Board”) recently issued the General Permit for Storm Water Discharges From Small Municipal Separate Storm Sewer Systems (“Small MS4 General Permit”). Developed in response to U.S. Environmental Protection Agency Clean Water Act regulations, the Small MS4 General Permit is part of Phase II of a national effort to reduce storm water pollution.
| Under Phase I, which governed storm water management requirements for over a decade, the State Board issued individual municipal storm water permits to large and medium government entities with populations of 100,000 or more. These governments were required to take actions to control pollution in storm water flowing into their separate storm sewer systems (“MS4s”). | Storm Water Management Programs must include the following Minimum Control Measures:
|
Now, under Phase II, the Small MS4 General Permit marks a new stage in the broadening reach of storm water regulation. Now, any town, city or other governmental entity of any size with a separate storm sewer system not already covered by another storm water permit must apply for coverage under the Small MS4 General Permit.
The State Board temporarily deferred including “non-traditional” entities, such as military bases, hospitals, ports, and college or school campuses under this new Permit. However, the Board made it clear that the Regional Water Quality Control Boards have the power to include such “non-traditional” entities under the Small MS4 General Permit. Some Regional Boards have already announced that they will act quickly to extend Permit coverage to such facilities.
Compliance poses serious questions for governmental entities subject to the new Small MS4 General Permit, and the consequences of non-compliance can be significant. Regional Boards may pursue administrative or civil penalties for alleged violations, and private citizens or environmental groups may bring lawsuits against permittees under the Clean Water Act.
Perhaps most daunting, compliance is not subject to objective determination, and some key requirements of the General Permit are elusive. For example:
- Under the Small MS4 General Permit, regulated entities must implement new Storm Water Management Programs (“SWMPs”). These SWMPs must include measurable goals for implementation of Minimum Control Measures (“MCMs”) to reduce storm water pollution. However, the required extent and effectiveness of these MCMs is not specified. Instead, the Permit prescribes an “iterative” process to evaluate and improve implementation of MCMs. Where MCMs are not “effective,” they must be revised and modified. While this process has certain practical advantages, it leaves the regulated community in the uncomfortable position of not knowing if its MCMs comply with the law.
- The breadth of permitee responsibility under this Permit’s MCMs is also a concern. For example, the success of one of the MCMs – the “illicit discharge detection and elimination” program – depends in part on whether residents of a city, town or government facility comply with the permittee’s program. As a result, some permittees are concerned that they could be liable for actions they cannot control of individuals within their jurisdictions.
- The General Permit’s technology standard is also unclear. Regulated parties’ “best management practices” must reduce storm water pollution to the “maximum extent practicable.” According to the State Board, this is an “ever-evolving” standard, so it will be difficult for any regulated party to be assured it is in compliance.
The Small MS4 General Permit is part of a series of new statewide general permits expanding the scope of the State Board’s storm water regulation. Under Phase I, the State Board also issued two other “general permits” regulating storm water from construction sites of over five acres and storm water from certain industrial facilities. Under Phase II, the State Board recently issued a new general permit expanding coverage to construction sites as small as one acre. A new industrial general permit – still being developed – will regulate additional classes of “industrial” activities.
Because of the complexity of determining measures for compliance with the Small MS4 General Permit and other general permits, permittees should work closely with storm water consultants and environmental counsel to ensure cost-effective utilization of resources.
The Environmental Law Department of Farella Braun + Martel has a national reputation for specialized legal services and serves our clients’ needs in all areas of environmental, health, safety and product law. Our practice is among the largest and most experienced in the country, and includes expertise in all areas of compliance counseling, agency representation and litigation – including all aspects of water quality law. Please contact your Farella Braun + Martel attorney or any of the attorneys listed below if you have questions or if we may be of service.