EPA and Environmental Groups Float Into Stormy Waters

Stormwater Drainage

Stormwater Drainage

By Stewart D. Fried and John G. Dillard

In a pair of environmental cases involving stormwater, the Supreme Court and a federal district court have flushed away certain beliefs held by EPA and environmental groups regarding the regulation of pollutants under the Clean Water Act (CWA).

In Los Angeles County Flood Control District v. Natural Resources Defense Council, the U.S. Supreme Court held that the flow of water out of a concrete channel into an earthen channel within the same waterway was not a discharge of pollutants under the CWA.  The plaintiffs, two environmental associations, sued L.A. County’s flood control agency under the CWA’s citizen suit provision, alleging that it was violating the terms of its National Pollutant Discharge Elimination System (NPDES) permit.  Not surprisingly, the case turned on whether the District was improperly discharging pollutants.  NRDC argued that a discharge occurred when stormwater flowed out of a concrete-lined portion of a drainage channel into an unlined portion of the same drainage channel.  The Ninth Circuit Court of Appeals bought NRDC’s argument, but the victory was short-lived.  In a rare, unanimous opinion in an environmental case, the Supreme Court held that the flow of water within a body of water does not constitute a discharge of pollutants.  “No pollutants are ‘added’ to a water body when water is merely transferred between different portions of that body.”  The Court relied heavily upon its 2004 decision in South Florida Water Management District v. Miccosukee Tribe, which held that water transfers from one part of a water body to another part of the same water body do not constitute a discharge.   Based upon the need to reverse the entirely unsupportable decision of the frequently reversed 9th Circuit, the U.S. Supreme Court was required to resolve the seemingly settled issue of whether the flow of water within a single body of water can constitute an illegal discharge of pollutants under the CWA.

A few miles to the south, the federal district court in Alexandria, Virginia, was also faced with the question of whether stormwater is a “pollutant” in another CWA case.   In Virginia Department of Transportation v. EPA, the Eastern District of Virginia addressed whether stormwater could be used as a surrogate for an actual pollutant.  In this case, EPA established a Total Maximum Daily Load (TMDL) for sediment in Accotink Creek, a Potomac River tributary.  In recognition of the correlation between quantity of stormwater entering the creek and sediment levels, EPA established a TMDL that limited the flow of stormwater into Accotink Creek.  This solution seemed simple enough but for one problem – stormwater is not a pollutant under the CWA.

EPA attempted to defend its actions by arguing that it could regulate the flow of stormwater as a “surrogate” for other pollutants.  Although the use of surrogate pollutants is not unheard of, a surrogate pollutant must still be a “pollutant” under the CWA.  For example, most strains of E. coli or fecal coliform are benign and harmless.  However, E. coli is itself a pollutant and it signals the existence of harmful animal waste or sewage in a water body.  Thus, E. coli is proper surrogate for EPA to use in establishing a TMDL.  Because Congress, in enacting the CWA, did not authorize EPA to regulate stormwater and other non-pollutants, the district judge determined that EPA’s stormwater TMDL exceeding its authority under the Act and ordered EPA to head back to the drawing board.

While it seemed clear to most environmental practitioners that stormwater is not a pollutant, these decisions should help to clarify an area of the law that was not particularly open for debate.

The Ag/FDABlog will be monitoring any further developments in the VDOT v. EPA matter.

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