MS4 Regulation and Water Quality Standards

II. Storm Water Regulation

A. General Storm Water Regulation

According to the EPA “[s]tormwater runoff is generated from rain and snowmelt events that flow over land or impervious surfaces, such as paved streets, parking lots, and building rooftops, and does not soak into the ground.”[4] Consequently, “[t]he runoff picks up pollutants like trash, chemicals, oils, and dirt/sediment that can harm our rivers, streams, lakes, and coastal waters.”[5] Storm water runs into municipal or industrial conveyance systems and is discharged into the nearest water body.[6] 

The storm water conveyance system is regulated under the CWA’s National Pollution Discharge Elimination System (NPDES) authority because polluted storm water is collected, conveyed, and eventually discharged from a point source.[7] The NPDES program controls all effluents that discharge a pollutant or multiple pollutants through a permit.[8]  NPDES permits “contain limits on what you can discharge, monitoring and reporting requirements, and other provisions to ensure that the discharge does not hurt water quality or people's health.”[9] A NPDES permit specifies “an acceptable level of a pollutant or pollutant parameter in a discharge.”[10]

NPDES permits control effluents through effluent limitations.[11] There are two types of effluent limitations.[12] The first type is technology-based effluent limitations or TBELs.[13] These types of limitations are based on the available technology and cost of the technology that removes the specific pollutants in the effluent.[14] The second is water-quality-based effluent limitations or QBELs. QBELs are developed to achieve compliance with the established water quality standards specific to each waterbody.[15] According to §1313 of the CWA, all states must establish water quality standards for all bodies of navigable water within the state’s jurisdiction.[16] Therefore, QBELs are based on standards the state establishes for the individual water body.[17] NPDES permits include QBELs if TBELs are not enough to ensure compliance with water-quality standards.[18]

QBELs are the safety net in the NPDES permit system.[19] QBELs ensure water quality standards when the technological limitation does not guarantee water quality attainment.[20] The CWA states that “each NPDES permit shall include… any requirements in addition to or more stringent than promulgated effluent limitations guidelines or standards under sections 301, 304, 306, 307, 318, and 405 of CWA necessary to … [a]chieve water quality standards established under section 303 of the CWA, including State narrative criteria for water quality.”[21] Thus, no matter which effluent technology the program mandates, each NPDES permit must require effluent limitations necessary to achieve the state established water-quality standards.

Storm water effluent limitations are governed by 33 U.S.C. §1342(p). Storm water is divided into two categories: industrial and municipal.[22] According to the act, “[p]ermits for discharges associated with industrial activity shall meet all applicable provisions of this section and §1311 of this title.”[23] Municipal storm water, on the other hand, “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 the State determines appropriate for the control of such pollutants.”[24] The two, understandably, have entirely different mandates on the effluent limitation required by the Act.

B. Industrial Storm Water:

Industrial storm water must comply with effluent limitations like all other effluent limitations in the NPDES program. According to the Code of Federal Regulations, “[s]torm water discharge associated with industrial activity means the discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant.”[25] Industrial storm water is governed by §1311 of the CWA, which specifies technology- and water-quality-based requirements.[26] The type of pollutant the effluent contains dictates industrial storm water’s effluent limitation.[27] The CWA §1311 mandates that a permit must incorporate both technology and water-quality requirements.[28]

Technology-based effluent limitations are governed by the type of pollutant the effluent contains and reflect the levels of reduction through the use of pollution-control technology.[29] For example, if the pollutant is a toxic or nonconventional pollutant, it must adhere to the “best available technology economically achievable” or BAT.[30] Additionally, if the effluent emits a conventional pollutant then the technology-based limitations are either the “best practicable control technology currently available” (BPT) or “best conventional pollutant control technology” (BCT).[31] In addition to technology-based pollution reduction, the permits must also adhere to  QBELs, as mentioned above.[32] Therefore, the CWA requires industrial storm water to adhere to a technologically-based effluent limitation that correlates to the type of pollutant the Industry emits along with water quality based effluent limitations.

C. Municipal Storm Water:

Municipal storm water conveyance systems or municipal separate storm sewer systems (MS4) are regulated “to the maximum extent practicable.”[33] Unlike the TBELs in §1311, Congress did not define what “maximum extent practicable” (MEP) meant. The MEP standard includes “management practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator or the State determines appropriate for the control of such pollutants.”[34] All MS4s must develop and implement storm water management plans in order to reduce pollutants to the maximum extent practicable.[35] Thus, the storm water management plans are the mechanism to reduce pollutants under the MEP effluent standard.

The storm water management plans (SWMP) implement management practices, control techniques, and system design and engineering methods designed to reduce pollutants to MEP. Phase I and II SWMPs differ, but have six core elements or best management practices (BMPs) that overlap.[36] The two SWMPs include some variation of public education, public participation, illicit discharge detection, construction and post-construction runoff control, and municipal housekeeping. Once a SWMP is implemented it goes through what the EPA has coined as the iterative process.[37] The iterative process is a review and assessment of the MS4’s BMP effectiveness.[38] After the review, MS4s are supposed to revise their BMPs with the ultimate goal of meeting WQSs.[39] Currently, there are no maximum iterations or limits in the Act or EPA guidelines about how many times a SWMP can fail to attain WQSs.[40]

MS4s regulated to the MEP standard achieve the standard by storm water management plans that implement best management practices in a narrative form, not a numeric form.[41] There are no numeric baseline criteria in the MEP standard like there are in the TBELs in §1311. Therefore, the MS4 permitting process has no numeric mandates. Therefore, water quality standards (WQS) are the only baseline that exists within the MEP standard. Thus, WQS’s are the only way to “control [] such pollutants” from municipal storm water because without a concrete standard, there is no measure of control.[42]

III. JUDICIAL INTERPRETATIONS:

A. Judicial Interpretation of Industrial Storm Water

Industrial storm water must conform to TBELs that are based on the effluent’s pollutant and must adhere to water-quality-based standards. When analyzing industrial storm water, the court addresses the effluent limitation accounting for both §1342[43] and §1311[44]. In California Sportfishing Prot. All. v. River City Waste Recyclers, LLC, the district court held that “[f]acility operators must meet the applicable standards for discharge of pollutants using the best available technology economically achievable (BAT) and the best conventional pollutant control technology (BCT) to prevent and reduce pollutants in storm water discharges, under Clean Water Act section 301, which regulates pollutant discharges, and section 402….”[45] According to the court, industrial storm water’s technological limitation correlates with the type of pollutant just like any other effluent under §1311.[46]

Additionally, in Santa Monica Baykeeper v. Kramer Metals, Inc, the district court held that the NPDES “[g]eneral Permit implements the requirements of the Clean Water Act through both technology-based provisions and water quality-based standards.”[47] Courts reinforce the pollutant-based technological limitation and the water-quality effluent limitation, treating industrial storm water just like every other effluent limitation. Just as the legislation mandates, industrial storm water must comply with TBELs and QBELs established in §1311. Industrial standards are concrete and held to both the technology- and water-quality-based limitations, with emphasis on a strict compliance to WQSs.[48] The same cannot be said for municipal storm water.

B. Judicial Interpretation of MS4’s:

1. NRDC v. EPA:

Unfortunately, judicial interpretations of MS4’s MEP standard has led to an effluent limitation system that has no teeth. This body of law started in NRDC v. EPA.[49] NRDC challenged the EPA’s storm water regulations alleging that it did not develop a new, substantive standard but instead “wrote vague regulations containing no minimum criteria or performance standards” thus failing their mandate from the 1987 amendments.[50] EPA contended that narrative effluent limitations in MS4 permits are acceptable limitations.[51] Thus, according to EPA, MEP’s effluent limitation can be a narrative limitation instead of numeric.[52]

The court based most of its reasoning on the differences between industrial and municipal storm water rules. The court in NRDC stated that “municipal storm water dischargers were subject to the same substantive control requirements as industrial and other types of storm water” before 1987. When amending the CWA, Congress “retained the existing, stricter controls for industrial storm water dischargers but prescribed new controls for municipal storm water discharge.”[53] Also, the court held that “Congress could have written a statute requiring stricter standards, and it did not.”[54] The Court continued by stating, “Congress did not mandate a minimum standards approach or specify that EPA develop minimal performance requirements.”[55] For all of these reasons, the court deferred to EPA’s narrative standard.

Consequently, MEP’s effluent limitation became a narrative limitation. But the court’s ruling in this case became the jump-off point for a later ruling that abrogates water-quality standards in MS4 permits.[56] There are two important things that we need to take from this ruling. First, the decision in NRDC decided to defer to EPA’s interpretation that narrative effluents are acceptable effluent limitations for MS4s.[57] Second, the court quotes EPA rules in 55 FR 47990-01, which discusses the best way to achieve water quality standards through narrative limitations.[58] Therefore, the document that the court defers to for its ruling asserts the use of water-quality standards in MS4 permits, which contradicts the Ninth Circuit’s later decision in Defenders.

2. Defenders of Wildlife v. Browner

In Defenders of Wildlife v. Browner, the Ninth Circuit eventually held that there was no strict requirement for MS4s to adhere to water-quality standards.[59] Defenders of Wildlife (Defenders), a citizen group, sued the EPA alleging, among other things, that “EPA acted arbitrarily, capriciously, and contrary to law in issuing NPDES storm sewer permits” to five Arizona municipalities.[60] Defenders alleged that the five permits the EPA issued to municipalities “do not assure compliance with water quality standards” because they use BMPs and not numeric water quality-based effluent limitations.[61] Furthermore, Defenders asserted that the CWA “explicitly requires all NPDES permits to contain whatever limitations are necessary to assure compliance with water quality standards (WQS) in the receiving river or lake.”[62] Defenders argued that EPA waived “the requirement to meet water quality standards” and that the waiver conflicted with the Act’s fundamental goal but also with the “Act's longstanding approach of requiring dischargers to meet both technology-based and water quality-based limits.”[63] Defenders did not believe that the BMPs and narrative effluents would achieve water-quality standards and contended that all MS4 permits must adhere to WQSs through numeric criteria.

The EPA conceded “that the Municipalities’ storm water NPDES permits must contain requirements as stringent as necessary to meet state water quality standards.”[64] The EPA also stated that “[t]o exempt municipal storm water discharge permits from compliance with water quality standards undercuts the goals of the 1987 amendments and the Clean Water Act as a whole.”[65] But, the EPA disagreed with the premise that numeric limitations are the only way to achieve water quality standards. The EPA asserted that the narrative “permits include effluent limitations as stringent as necessary to meet applicable water quality standards” through the MS4’s storm water management plans.[66] EPA claimed that the effluent limitations “may include ‘best management practices’ to control or abate the discharge of pollutants.”[67] Thus, EPA contends that NPDES permits must comply with water quality standards, but that BMPs in the storm water management plans are sufficient to achieve those standards.

The Ninth Circuit sided with neither party stating that both parties ignore statutory precedent and both parties’ readings would render the section superfluous.[68] The Ninth Circuit held that MS4s are not subject to strict WQS adherence because Congress was not as strict with municipal storm water as Congress was with industrial storm water.[69] The court based it reasoning on several arguments. First, the court stops at Chevron step 1, holding that Congress’s intent was clear because it left out §1311 in the MEP standard.[70] Second, the court states that the “no-strict” standard gives meaning to the entire statute and does not render any part of the act superfluous.[71] Third, the court states that their ruling harmonizes with their previous decision in NRDC.[72] Thus, according to the court, MS4s do not have a strict compliance mandate with WQSs, making it not a mandate or requirement at all.[73]

IV. COUNTER ARGUMENTS TO THE NINTH CIRCUIT’S DECISION

The court is incorrect on all of its reasons. First, the court applies a Chevron analysis, but the court stops at Chevron step 1, holding that Congress’s intent was clear because it left out §1311 in the MEP standard.[74] Confusingly, the court takes aim at industrial storm water and establishes that 402(p) “expressly required industrial storm-water discharges to comply with the requirements of 33 U.S.C. § 1311.”[75] Logically, as the court pointed out (as with all NPDES permits) this mandates that “industrial discharges must comply strictly with state water-quality standards.”[76] Then, the court emphasizes that Congress did not chose the same language and “required municipal storm-sewer discharges ‘to reduce the discharge of pollutants to the maximum extent practicable’” or MEP standard.[77]

The court concluded that both EPA and Defenders “ignored precedent respecting the reading of statutes.”[78] The court quoted Russello v. United States, reasoning that “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”[79] The court applied a pseudo expressio unius form of interpretation and reasoned that it was “Congress' choice to require Industrial storm-water discharges to comply with 33 U.S.C. § 1311, but not to include the same requirement for municipal discharge.”[80] And when the court read these two sections together, the court concluded that “33 U.S.C. § 1342(p)(3)(B)(iii) does not require municipal storm-sewer discharges to comply strictly with 33 U.S.C. § 1311(b)(1)(C).”[81] The court continues by stating that “33 U.S.C. § 1342(p)(3)(B) replaces the requirements of §1311 with the requirement that municipal storm-sewer dischargers ‘reduce the discharge of pollutants to the maximum extent practicable’” and that “in the circumstances, the statute unambiguously demonstrates that Congress did not require municipal storm-sewer discharges to comply strictly with 33 U.S.C. §1311(b)(1)(C).”[82]

The court mistakenly ignores that § 402(p) is a pollution-based effluent limitation mandate, not just a mandate to water-quality based standards. Industrial storm water effluent is the same as any other effluent from industry. If the court considered this aspect of industrial storm water, it would realize that the act was not just referring to WQSs. The act, in §402(p) mandates industrial storm water to adhere to the pollutant-based effluent limitations in §1311. As stated above, TBELs are based upon the type of pollutant and the correlating technology.[83] Therefore, it is the intent of Congress that industrial storm water be treated like any other effluent limitation. What is not clear is how industrial storm water’s §1311 mandate affects municipal storm water.

The court’s interpretation leaves two issues. First, by addressing other parts of the act, as the court does in its reasoning, it seems that the congressional intent was to ensure that WQSs are met. As discussed the below, other parts in the act point toward this interpretation. Second, even if the intent is not easily discerned, it means there is an ambiguity, thus requiring the court to go to step two of the Chevron Analysis. If the court went to step two, it would have to defer to the EPA’s interpretation, which concludes that WQSs are necessary requirements to the NPDES permit.[84]

It seems logical that the MEP standard is the technology based standard for municipal storm water. And that MEP does not, however, replace the water quality based standard that is required by the Act and Code.[85] Intent in favor of water quality standards is readily ascertained from the Act because looking at the CWA as whole, all parts of the Act point toward the intent to mandate strict compliance of water quality standards. First §1311(c), the mechanism that controls point source pollution, explicitly states, “in order to carry out the objective of this chapter there shall be achieved … any more stringent limitation, including those necessary to meet water quality standards.”[86] Second, 40 CFR 122.44 explicitly mandates that NPDES permits must include “any requirements in addition to or more stringent than promulgated effluent limitations guidelines … necessary to … [a]chieve water quality standards established under section 303 of the CWA.”[87] Third, the act mandates that states enact water quality standards for the purpose of NPDES permits, effluent limitations, and ultimately water quality improvement.[88] Thus, all parts of the act show congressional intent that favors strict compliance to water quality standards.

Furthermore, the court ignores the context of the rest of the section, especially §1342(p)(2)(E). The Act states that if “the Administrator or the State … determines that the storm water discharge contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States” the Administrator or State can mandate a NPDES permit from the storm water discharger.[89] This particular section is called Residual Designation Authority, and if the Administrator determines that a non-regulated storm water discharger contributes to a water quality standard violation, the EPA or Administrator can bring the discharger within the NPDES permitting authority.[90] It would be illogical, at best, to include a way to bring a storm water discharger that has not been named in the Act under the NPDES permitting authority for WQS violations and yet allow a no-strict WQSs approach to a storm water discharger already under the NPDES permitting authority. Thus, the storm water discharger that is originally unregulated is strictly held to WQSs; yet, according to the Ninth Circuit, MS4s are not strictly held to WQSs even if they are specifically regulated under the CWA.[91] Section 1342(p)(2)(E) demonstrates the illogical nature of allowing MS4s, a specified discharger under the CWA, to fail to strictly adhere to WQSs when the Act can mandate a non-CWA-specified storm water discharger to attain a permit for WQS violations.

EPA has also explicitly expressed, in a legal memorandum in addition to their brief before the Ninth Circuit, that MEP was not supposed to supplant WQS attainment.[92] In 1991, a legal opinion issued by EPA’s general counsel explained that the MEP standard was only meant to modify the technology-based requirement of §301.[93] The opinion states that one can read §1342 (p)(3)(B)(iii) “as modifying only technology-based requirements for municipal storm water (i.e., MEP substitutes for BAT/BCT); any WQ-based requirements would still be necessary in a municipal permit, even if those requirements are more stringent than ‘practicable.’”[94]  

According to the legal opinion, the MEP is the new technology standard used for MS4s, however, WQSs still apply.[95] EPA’s general counsel also stated, “[t]he only interpretation by EPA to date, contained in its proposed rulemaking, has been that WQS would continue to apply to permits for municipal storm water discharges.”[96] Therefore, MEP is the technology used to attain the WQSs that the states have set. In 1996, EPA implicitly affirmed their legal opinion stating that numeric effluent limitations would be substituted by “best management practices … and expanded or better tailored BMPs in subsequent permits … to provide for the attainment of water quality standards.”[97] According to EPA, WQSs have always been part of the NPDES permit requirements regardless of the category of discharge.

Furthermore, if congressional intent is not clear, courts must defer to EPA. If congressional intent is ambiguous, Chevron analysis mandates that EPA’s interpretation should stand as long as the interpretation is not arbitrary or capricious.[98] Since EPA’s view on mandating WQSs as part of MS4s is within its scope of the CWA and serves the purpose of the Act, the court will have no choice but to defer to EPA. Thus, regardless of intent or ambiguity, water-quality standards must be part of every MS4 NPDES permit and must require strict compliance.

The second argument that the court mentions is that the ‘no-strict’ standard gives meaning to the entire statute and does not render any part of the act superfluous.[99] The court states that if it applies a strict water quality mandate on MEP, then it would render §1342(p)(3)(B)(iii) meaningless because “the more stringent requirements of that section always would control,” thus making MEP superfluous.[100] The court misses its mark on three accounts.

First, the court’s reasoning does not pass logical muster. The court contends that because §1311(c) will always be stricter, it will render the MEP standard superfluous. The court provides no evidence of this. Additionally, there are plenty of occasions where WQSs are more stringent than the effluent limitations. Such is the purpose of WQSs; they are ambient requirements that act as a safety net when effluent limitations are not enough.[101] The court misinterprets the Act. WQSs are the baseline standard.[102] If the effluent limitation is not enough, then there needs to be stricter controls of that very effluent limitation. For example, if a MS4 is not meeting WQSs, then the MEP standard it uses will be stricter, just like 40 CFR 122.44 requires. But, the standard is still MEP.

Second, the court’s ruling renders parts of the CWA superfluous in its ruling. As stated above as examples of congressional intent, there are three main parts of the CWA that the court renders superfluous. First, it renders §1311(c) meaningless because it states that it does not apply to MS4s even though the section specifically states that any more stringent limitations necessary to meet water-quality standards must be included in NPDES permits in order to carry out the objectives of the Act.[103] Second, the court ignores that 40 CFR § 122.44 explicitly mandates that NPDES must have requirements that ensure WQS attainment.[104] Finally, the court ignores that the Act mandates that states enact water-quality standards.[105] Thus, in an attempt to not render the MEP standard superfluous, the court renders three other substantial parts of the Act superfluous.

In addition to rendering other parts of the Act superfluous, the court renders the MEP effectively superfluous. By creating the no-strict standard, courts have interpreted that WQSs play no part in MS4 permits. As an example of this consequence in action, in Maryland Dep’t of Environment v. Anacostia Riverkeeper, a state court held that MS4s do not need to adhere to WQSs, period.[106] Environmental groups challenged NPDES permits that were issued to several counties by the Maryland Department of the Environment (MDE), contending that the NPDES permits failed to comply with the state water-quality standards or the TMDL limits.[107] In the opinion directly quoting the Ninth Circuit’s Defender language, the court expressly stated, “MS4s are not subject to the requirement of imposing effluent limitations ‘necessary to meet water quality standards.’”[108] The court stated that the MEP standard established by Congress is a “broad requirement for MS4s and that 33 USC 1342(p)(3)(B)(iii) ‘imposes no minimum standard or requirement on MDE other than to establish controls for MS4s to reduce the discharge of pollutants.’”[109] The holding is an impermissible extension of Defenders, and contradicts the clear mandate that all NPDES permits must adhere to WQSs.[110]

Furthermore, courts are ignoring the purpose of the storm water management plans because there is no strict compliance to WQSs. In Jones Creek, a district court held that “the EPA’s regulations state that this requirement [SWMPs] is satisfied merely by implementing the best management practices listed in the MS4 permit” and “[w]hether those BMPs actually reduce pollutants in the stormwater is immaterial.”[111] The court concluded that because a MS4 permit only requires the county “to ‘implement and enforce’ it’s [sic] SWMP, and because the undisputed facts on the record are that it has implemented and enforced its SWMP to some degree, Columbia County has not violated its NPDES permit by failing to enforce the SWMP as a matter of law.”[112] This court held that as long as a MS4 has a SWMP, whether that plan reduces pollutants is irrelevant. Thus, according to this court, SWMPs are nothing more than a meaningless, or as the Ninth Circuit puts it, superfluous pieces of paper whose impacts are irrelevant. Therefore, without WQSs as the baseline, courts can view SWMPs as superfluous. Furthermore, without WQSs as a strict baseline standard, the MEP is effectively rendered superfluous and meaningless.

The final reason the court gives for its ruling is that its decision is supported by the NRDC case. But requiring MS4s to adhere to WQSs is also supported by the court’s decision in NRDC. The court held that industrial and municipal are different, which the two are. The court also held that industrial’s effluent limitations are stricter, which they are. Industrial storm water has to adhere to pollutant-based technology standards and water quality based standards. MS4s just have to adhere to water-quality-based standards. There is no conflict with the Ninth Circuit’s ruling in NRDC.

V. THE COMMON SENSE READING OF MEP

First, the industrial mandate of §402(p) should be read to mandate industrial storm water’s adherence to a pollutant-based effluent limitations listed in §1311 of the Act. Thus, the effluent limitation is based on whether it is a conventional, nonconventional, or toxic pollutant, just like every other effluent limitation from industrial activity.[113]

Second, the MEP standard should be read according to the EPA legal memorandum by which the MEP standard is nothing more than the effluent technology standard that MS4s must abide by. Because of the wide array of pollutants that storm water produces, MEP’s flexibility allows for a better tailored effluent limitation. The SWMP allows for assessment of these different pollutants, but the MEP standard must still produce an effluent that does not interfere with water-quality standards. From a practical standpoint, this type of reading is common sense. Thus, industrial storm water must adhere to the higher standard of pollutant-based technology standards and MS4s must adopt a SWMP that adheres to WQSs set by the state. If they fail, then their SWMP must increase its efficacy, just like the iterative process that exists today. The only difference is that if the SWMP fails, it is still in violation of the CWA because it failed to attain WQSs. Holding MS4’s feet to the fire is the only way to clean up MS4 effluent.

VI. CONCLUSION

Storm water is a major challenge in this country. Yet, the tools and regulations are in place. The EPA has NPDES permitting authority that uses technological limitations and water-quality-based limitations. The only issue is shortsighted judicial interpretation that conflates a different standard with no standard at all.

Finally, §1342(p) must be read to include strict adherence to WQSs. Strict adherence is the only way to be consistent with the goals of the Act. It is consistent with all parts of the Act. And finally, it is consistent with EPA’s interpretation of the dynamic between technology-based effluents and water-quality-based effluent limitations. Thus, MS4s must strictly comply with WQSs.