Chapman Law Review
Spring 2006
Urban Runoff, Water Quality, and the Issue of Legal Authority Symposium
Article
GENERAL INDUSTRIAL STORM WATER PERMITS AND THE CONSTRUCTION INDUSTRY: WHAT DOES THE CLEAN WATER ACT REQUIRE?
John H. Minan [tippy title=”*” header=”off”]Professor of Law, University of San Diego School of Law. Professor Minan is the Chairman of the Water Board, San Diego Region, and he served on the Water Board that adopted various types of storm water permits. The views expressed in this article are his own, and do not represent those of the State of California or any of its agencies.[/tippy]
Copyright (c) 2006 Chapman Law Review; John H. Minan
I. Introduction
Regulators, under unprecedented pressure, face a range of demands, often contradictory in nature: be less intrusive–but more effective; be kinder and gentler–but don’t let the bastards get away with anything; focus your efforts–but be consistent; process things quicker–and be more careful next time; deal with important issues–but do not stray outside your statutory authority; be more responsive to the regulated community–but do not get captured by industry.
Malcolm K. Sparrow [tippy title=”1″ header=”off”]Malcolm K. Sparrow, The Regulatory Craft: Controlling Risks, Solving Problems, and Managing Compliance 17 (2000).[/tippy]
If regulators are to make a difference in improving and protecting water quality, they must focus their attention, time, and energy on significant problem areas. This article examines one such area: the use of “general permits” [tippy title=”2″ header=”off”]General permits are an administrative mechanism developed by the EPA to regulate an entire group or category of similarly situated activities in the least burdensome manner for the permittee and administering agency. A “general permit may be written to regulate one or more categories or subcategories of discharges or sludge use or disposal practices or facilities, within the area described in paragraph (a)(1) of this section, where the sources within a covered subcategory of discharges are… [s]torm water point sources [.]…” 40 C.F.R. § 122.28(a)(2) (2004).[/tippy] to regulate storm water discharges from construction activities under the Clean Water Act (CWA). [tippy title=”3″ header=”off”]Clean Water Act §§ 101-607, 33 U.S.C. §§ 1251-1387 (2000). The CWA is commonly cited to both its original section numbers and the United States Code.[/tippy]
This article explores the connection between construction activities and water quality, and the baseline rules governing storm water permitting. It also analyzes the legal controversy, which has split the federal circuits, [tippy title=”4″ header=”off”]Envtl. Def. Ctr., Inc. v. United States Envtl. Prot. Agency [hereinafter EPA], 344 F.3d 832, 853 (9th Cir. 2003) (treating the Notice of Intent (NOI), in some regards, as the “functional equivalent” of a permit or permit application); Tex. Indep. Producers and Royalty Owners Ass’n v. EPA, 410 F.3d 964, 978 (7th Cir. 2005), reh’g denied en banc Aug. 26, 2005, (concluding that the terms “permit application” and “permit” do not include NOIs and SWPPPs).[/tippy] of treating the Notice of Intent (NOI) to be covered by the terms of the general permit and accompanying Storm Water Pollution Prevention Plan (SWPPP) as the “functional equivalent” of a permit or permit application. [tippy title=”5″ header=”off”]Clean Water Act § 402(a)(1), 33 U.S.C. § 1342(a)(1) (2000) provides that “the Administrator [of the EPA] may, after opportunity for public hearing, issue a permit….” See also discussion infra Part VII. The “Functional” Permit Theory.[/tippy] This controversy springs primarily from the fact that the CWA does not define the terms “permit” or “permit application.” [tippy title=”6″ header=”off”]Clean Water Act §§ 101-607, 33 U.S.C.S. §§ 1251-1387 (LexisNexis 2002); see Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 853 (9th Cir. 2003) (interpreting congressional intent to aid in defining the scope of the term “permit”).[/tippy] In a broad sense, the central inquiry is one of statutory construction: What does the CWA require?
The functional equivalent theory is significant because its application to a NOI and accompanying SWPPP triggers the statutory entitlement to a public hearing and public availability. [tippy title=”7″ header=”off”]Clean Water Act § 402(a)(1) sets forth the public hearing requirement: “the Administrator may, after opportunity for public hearing, issue a permit.” Clean Water Act § 402(j) states: “A copy of each permit application and each permit issued under this section shall be available to the public. Such permit application or permit, or portion thereof, shall further be available on request for the purpose of reproduction.”[/tippy] A public hearing and the opportunity for public comment is afforded when the “general permit” is promulgated by the U.S. Environmental Protection Agency (EPA) in the Federal Register, not typically at the time the individual NOI is submitted to the permitting agency by the owner or operator of the construction site. [tippy title=”8″ header=”off”]See ABA Section of Env’t, Energy, and Res., The Clean Water Act Handbook 44-47 (Mark A. Ryan ed., 2d ed. 2003).[/tippy]
An active and involved public is crucial to the success of the construction storm water management program. Public hearings are generally recognized as an essential component to sound decision making and to the advancement of democratic ideals. However, it may be argued that a public hearing on an individual NOI and SWPPP is not required by the CWA. This argument ought not be construed as a general argument against public hearings or public participation. Providing a hearing upon filing a NOI may undermine the general permitting scheme by creating an undue administrative burden on the agency issuing construction storm water permits. Nevertheless, in those jurisdictions subscribing to the “functional equivalent” theory, administrative solutions must be found to deal with this requirement.
Any statute, including those that are well drafted and seemingly clear, may lead to a variety of argued-for statutory constructions. This situation is equally true with respect to the functional equivalent theory. Language is inherently a breeding ground for ambiguity. On some occasions, the ambiguity is intentional on the part of Congress, whereas at other times it is not. Oftentimes the varying interpretations or constructions become apparent only after viewed through the lens of creativity.
The proper statutory construction of the meaning of “permit” or “permit application” lies at the heart of the constructional issue that has divided the federal courts. [tippy title=”9″ header=”off”]Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 853, 858 (9th Cir. 2003) (treating the Notice of Intent (NOI) as “functionally equivalent” to a permit or permit application, and thus requiring it to be “available to the public” and “subject to public hearings.”); Tex. Indep. Producers and Royalty Owners Ass’n v. EPA, 410 F.3d 964, 978-79 n.13 (7th Cir. 2005), reh’g denied en banc Aug. 26, 2005, (rejecting the functional equivalent theory).[/tippy] Like most questions of statutory construction, Congress has within its power the ability to settle the controversy by clarifying its intent. Alternatively, the Supreme Court of the United States may be asked to resolve the controversy, which is likely given the division between the federal circuits on the functional equivalent theory. The need for uniformity in administering the CWA, the economic impact of the theory on the regulated community, and the importance of public participation to the community also provide strong impetus to the need of settling the controversy.
The general goal of regulation is to abate and control the risks to society. The CWA, which is the principal regulatory statute designed to protect society and the integrity of our nation’s waters, provides the legal structure for regulating storm water runoff. [tippy title=”10″ header=”off”]Clean Water Act § 101(a), 33 U.S.C. § 1251(a) (2000) declares Congress’s objective to be “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The other important federal statute dealing with water quality is the Safe Drinking Water Act, 42 U.S.C.A. §§ 300f-300j-9 (West 2003). It directs the EPA to set primary and secondary maximum levels for contaminants in public drinking water systems.
In 1987, the CWA was amended to add specific provisions dealing with the regulation of storm water, which are contained in Section 402(p). Clean Water Act § 402(p), 33 U.S.C. § 1342(p) (2000).[/tippy] Regulating discharges to waters of the United States from construction activities is an important chapter in the story of storm water management. But it is only part of the larger story of regulating storm water runoff from other industrial and municipal activities.
The federal National Pollutant Discharge Elimination System (NPDES) [tippy title=”11″ header=”off”]Clean Water Act § 402, 33 U.S.C. § 1342 (2000).[/tippy] of the CWA authorizes [tippy title=”12″ header=”off”]40 C.F.R. § 122.28(a)(2)(i) (2004); see also Clean Water Act § 402(p)(6), 33 U.S.C. § 1342(p)(6) (2000).[/tippy] the use of “general” permits for construction activities that discharge storm water [tippy title=”13″ header=”off”]Storm water is defined in the EPA regulations to include “storm water runoff, snow melt runoff, and surface runoff and drainage.” 40 C.F.R. § 122.26(b)(13); see also 40 C.F.R. § 122.26(b)(14) (dealing with discharges associated with industrial activities).[/tippy] either directly to waters of the United States or indirectly through a municipal “separate” storm sewer system (MS4). [tippy title=”14″ header=”off”]40 C.F.R. § 122.26(b)(8) (2004) (defining the term “separate” as a conveyance system that discharges directly to the receiving water without any pretreatment). In contrast, a combined sewer system conveys sanitary wastewater and storm water through a single set of pipes to a publicly owned treatment works (POTW) for treatment prior to discharge to a receiving water. Id.[/tippy] The principal tool or condition contained in the NPDES general storm water permit used to manage such discharges is the SWPPP. [tippy title=”15″ header=”off”]The required content of the SWPPP is described in NPDES General Permit for Storm Water Discharges from Construction Activities, at P 3.4 (2005), available at http://www.epa.gov/npdes/pubs/cgp2003_entirepermit.pdf (last visited Feb. 11, 2006) [hereinafter NPDES General Permit].[/tippy] The SWPPP identifies the potential sources of pollution that are expected from the construction site, describes the best management practices (BMPs) [tippy title=”16″ header=”off”]A BMP is a technique, process, activity, or structure used to reduce pollutants. It may be nonstructural, such as good housekeeping or simply preventive maintenance, or structural, such as bio-retention swales to promote infiltration. Storm Water Management for Industrial Activities: Developing Pollution Prevention Plans and Best Management Practices (EPA) Oct. 1992, at 8.[/tippy] to be used by the developer to reduce the pollutants, and affirms that the developer will comply with the terms and conditions of the storm water permit. [tippy title=”17″ header=”off”]NPDES General Permit, supra note 15, at P 3.1.[/tippy]
In regulating the pollutants in storm water discharges from construction sites, general permits, which regulate an entire group or category of similarly situated activities, are the norm throughout the United States. [tippy title=”18″ header=”off”]The use of general permits was first suggested to the EPA in response to its attempt to exempt large categories of storm water discharges from NPDES permit requirements. See, e.g., Nat’l Res. Def. Counsel v. Train, 396 F. Supp. 1393, 1395, 1401-02 (D.C. 1975), aff’d, Nat’l Res. Def. Counsel v. Costle, 568 F.2d 1369 (D.C. Cir. 1977).[/tippy] The reason is straightforward: administrative necessity. The number of construction sites subject to the storm water provisions of the CWA is simply too large to be regulated by individually tailored NPDES construction storm water permits. This reality elevates the practical importance of general permits relative to individually issued permits.
The General Permit for Storm Water Discharges from Construction Activities (CGP) is promulgated by the EPA. [tippy title=”19″ header=”off”]See NPDES General Permit, supra note 15.[/tippy] The CGP has gone through a series of updates and changes since the storm water provisions contained in Section 402(p) of the CWA were added to the law in 1987. [tippy title=”20″ header=”off”]Clean Water Act § 402(p), 33 U.S.C. § 1342(p) (2000).[/tippy] The first general storm water permit for construction activities was issued by the EPA in 1992. [tippy title=”21″ header=”off”]57 Fed. Reg. 41,176 (Sept. 9, 1992). Public comment on the permit was requested in 56 Fed. Reg. 40,948 (Aug. 16, 1991).[/tippy] This was followed by the 1998 CGP. [tippy title=”22″ header=”off”]63 Fed. Reg. 7858 (Feb. 17, 1998) (“The Regional Administrators of Regions 1, 2, 3, 7, 8, 9 and 10 are today issuing final National Pollutant Discharge Elimination System (NPDES) general permits for stormwater discharges associated with construction activity.”); 63 Fed. Reg. 36,490 (July 6, 1998) (“Region 6 is issuing the final [NPDES] general permits for stormwater discharges associated with construction activity in Region 6.”).[/tippy] The 2003 CGP, [tippy title=”23″ header=”off”]NPDES General Permit, supra note 15, at P 1.2.[/tippy] which supersedes the earlier permits and applies both to large and to small construction sites, became effective on July 1, 2003. [tippy title=”24″ header=”off”]68 Fed. Reg. 39,087 (July 1, 2003).[/tippy] The CGP does not deal with or authorize post-construction discharges of storm water as these discharges are separately regulated. [tippy title=”25″ header=”off”]NPDES General Permit, supra note 15, at P 1.3.C.[/tippy] As discussed later in this article, states may also administer the federal storm water discharge program under an EPA-approved program. [tippy title=”26″ header=”off”]Clean Water Act § 402(b), 33 U.S.C. § 1342(b) (2000). See also discussion infra Part V. The Role of the States in Storm Water Regulation.[/tippy]
Prior to the commencement of construction, the owner of the building site submits a NOI to be covered by the CGP [tippy title=”27″ header=”off”]68 Fed. Reg. 39,087, 39,089 (July 1, 2003). The EPA’s Construction General Permit also uses the term “operator” to describe the party responsible for complying with its terms. An operator is any party associated with a construction project that meets either of the following criteria: 1) operational control over the construction plans and specifications, or 2) day-to-day operational control of those activities that are necessary to comply with a SWPPP or other permit conditions. See NPDES General Permit, supra note 15, at Appendix A-2.[/tippy] to the EPA or state-approved agency administering the storm water law with the certification, made under the penalty of law, [tippy title=”28″ header=”off”]See, e.g., EPA, Notice of Intent (NOI) for Stormwater Discharges Associated with Construction Activity Under a NPDES General Permit, Form 3510-9 (Rev.6/03), available at http://www.epa.gov/compliance/resources/publications/monitoring/inspections/npdesinspect/npdesinspectappt.pdf.[/tippy] that the CGP will be implemented. [tippy title=”29″ header=”off”]See, e.g., NPDES General Permit, supra note 15, at P 2.4.[/tippy] Permitting authorities vary in their treatment of NOIs. Some authorities automatically grant permit coverage upon submittal or receipt of the NOI or after a stipulated waiting period. Other permitting authorities require the operator to wait for confirmation that coverage has been granted. [tippy title=”30″ header=”off”]EPA National Pollutant Discharge Elimination System (NPDES) Storm Water Program Questions and Answers, “What does the submittal of an NOI mean?” 4 (January 21, 2004) (on file with author); see also NPDES General Permit, supra note 15, at P 2.1(B) (authorizing the discharge seven calendar days after acknowledgment of the completed NOI). The EPA has proposed a new 30 day waiting period that begins on the day that the NOI is posted on its e-NOI web site. Proposed 2006 Multi-Sector General Permit, P 3.3, available at www.epa.gov/npdes/pubs/msgp2006_all-proposed.pdf.[/tippy] In response to Environmental Defense Center, Inc. v. EPA, [tippy title=”31″ header=”off”]344 F.3d 832 (9th Cir. 2003), cert. denied, Tex. Cities Coal. on Stormwater v. EPA, 541 U.S. 1085 (2004). The Phase II Rule was challenged in separate actions in the Fifth, Ninth, and D.C. Circuits, which were subsequently consolidated before the Ninth Circuit. Id. at 843.[/tippy] the EPA “recommends,” but does not require, that permitting authorities make NOIs available to the public at least thirty days before authorization to discharge. [tippy title=”32″ header=”off”]Memorandum, “Implementing the Partial Remand of the Stormwater Phase II Regulations Regarding Notices of Intent & NPDES General Permitting for Phase II MS4s,” dated April 16, 2006, from James A. Hanlon, Director, EPA Office of Wastewater Management to Water Management Division Directors, Regions I-X, available at http://www.epa.gov/npdes/pubs/hanlonphase2apr14signed.pdf (last visited Feb. 19, 2006) [hereinafter Hanlon, Memorandum].[/tippy] This recommendation is typical of the “waiting period” approach.
Providing a public hearing for each construction activity seems at odds with the system of general permits. Consequently, a retooling of the current administrative practice is necessary to accommodate the view that the CWA requires a public hearing. Until the law is settled, administrative solutions must be found in those federal judicial circuits that require that a public hearing be provided on NOIs and SWPPPs in order to be able to move forward with regulating construction activities. These solutions must be found in a timely manner because the construction industry is both dynamic and one of the country’s largest engines of economic growth. Administrative uncertainty as to the legal mandates adds delay and increased cost to construction projects, which inevitably must be borne by consumers.
Another reason why timely resolution is essential involves enforcement. If the issuance of the general permit is legally challengeable for the noncompliance with the public hearing requirement, litigation under the citizen suit provisions of the CWA is predictable. [tippy title=”33″ header=”off”]Clean Water Act § 505, 33 U.S.C. § 1365 (2000).[/tippy] Future EPA and state administrative enforcement practices also are potentially affected. Regulatory enforcement against storm water violators assumes a validly issued permit. The failure to provide a “required” public hearing on NOIs and SWPPPs squarely challenges the validity of this assumption.
II. Industry Compliance and Enforcement
Failure to comply with the provisions of the CWA applicable to storm water management may trigger significant civil [tippy title=”34″ header=”off”]Clean Water Act § 309(d), 33 U.S.C. § 1319(d) (2000) (Any person who violates any section of this Title or any order issued by the Administrator shall be subject to a civil penalty not to exceed $25,000 per day for each violation.).[/tippy] and criminal sanctions. [tippy title=”35″ header=”off”]Clean Water Act § 309(c), 33 U.S.C. § 1319(c) (2000). For example, a criminal fine in the amount of $600,000 for industrial runoff from a collection pit to the Los Angeles and San Gabriel Rivers was imposed on a Southern California soft drink bottler, 7-Up/RC Bottling. Wendy Thermos, Bottler to Pay $1 Million for Pollution of 2 Rivers; Runoff was harmful to humans and marine life, L.A. Times, Nov. 11, 2005, at B5.[/tippy] The potential application of these sanctions to violators provides regulators with the necessary regulatory hammer to assure compliance with the law. This regulatory hammer is increasingly being used.
Industry compliance with the construction storm water regulations has been slow. The EPA estimated construction activities exceed 62,000 starts per year, but that fewer than 20,000 construction sites applied for storm water coverage in 1999. [tippy title=”36″ header=”off”]Memorandum from Walker B. Smith, Director, EPA Office of Regulatory Enforcement, 2003 Storm Water Compliance and Enforcement Strategy, at 12 (Aug. 14, 2003), available at http://www.epa.gov/compliance/resources/policies/civil/cwa/stwenfstrategy2003.pdf [hereinafter Memorandum from Walker B. Smith].[/tippy] States also recognized the compliance problem. In California, for example, the legislature acted by requiring Regional Water Boards to annually identify dischargers who had not obtained coverage under an appropriate storm water permit. [tippy title=”37″ header=”off”]Cal. Water Code § 13399.30(a)(1).[/tippy] Non-filers were recognized as a serious compliance problem, but they were not the only concern: many builders who applied for industrial storm water permits were also found to be in non-compliance with their submitted NOI. [tippy title=”38″ header=”off”]Memorandum from Walker B. Smith, supra note 36, at 1.[/tippy] Additional regulatory action to assure compliance with the mandates of the CWA was needed. As a result, the EPA has increased its enforcement focus on development and construction activities. [tippy title=”39″ header=”off”]Region 4 Continues Systematic Enforcement of Storm Water Violations (American Bar Ass’n Envt’l. Crimes & Enforcement Comm.), Oct. 2004, at 19. See also Memorandum Eric V. Schaeffer, Director, Office of Regulatory Enforcement to Water Management Division Directors Regions I-X (Jan. 18, 2000), available at http://www.epa.gov/compliance/resources/policies/civil/cwa/stmwtrstra.pdf.[/tippy]
Storm water regulation of these activities has been identified as an EPA enforcement priority, with particular attention on large-scale developers exhibiting a corporate-wide pattern of non-compliance. [tippy title=”40″ header=”off”]Rafe Petersen, Regulation of Stormwater Pollution: An Area of Increasing Importance to the Construction Industry, 19 Prob. & Prop. 45 (2005); see generally Memorandum from Walker B. Smith, supra note 36, at 3.[/tippy] Commercial developers of “big-box” stores and large national residential builders [tippy title=”41″ header=”off”]United States v. Wal-Mart Stores, Inc., No. 04-301 (D. Del. Oct. 14, 2004) (order requiring all parties to submit further explanations as to why the court should approve consent decree).[/tippy] are currently high profile enforcement targets. [tippy title=”42″ header=”off”]Id.[/tippy] The building industry is now in the enforcement cross hairs of the EPA and state regulators.
The EPA has initiated numerous enforcement actions seeking millions of dollars in civil penalties from developers and builders for failing either to secure a storm water permit, so-called non-filers, or for failing to comply with its terms. In 2004, for example, the U.S. Department of Justice and the EPA, along with the U.S. Attorney’s Office for the District of Delaware, and the states of Tennessee and Utah reached a settlement for storm water discharge violations at Wal-Mart store construction sites across the country. [tippy title=”43″ header=”off”]Consent Decree, United States v. Wal-Mart Stores, Inc. (D. Del. 2004), available at http://www.epa.gov/compliance/resources/decrees/civil/cwa/walmart2-cd.pdf.[/tippy] According to the factual allegations in the EPA’s complaint, Wal-Mart constructs more than one hundred Wal-Mart, Wal-Mart Supercenter and Sam’s Club stores per year. [tippy title=”44″ header=”off”]Complaint at P 24, United States v. Wal-Mart Stores, Inc., available at http://cfpub.epa.gov/compliance/cases/ (Search: Wal-Mart II Storm Water Settlement).[/tippy] As a result of this enforcement action, Wal-Mart agreed to pay a $3.1 million civil penalty and to reduce storm water runoff at its sites by instituting better control measures. [tippy title=”45″ header=”off”]Consent Decree, United States v. Wal-Mart Stores, Inc., supra note 43. This settlement was the second enforcement action resulting in a settlement with Wal-Mart for violations of the Clean Water Act. In 2001, Wal-Mart and several contractors entered into a settlement with the U.S. to address storm water violations at 17 sites in several states. The 2001 settlement included a penalty of $1 million and required Wal-Mart to develop a storm water training program for its contractors and to inspect and oversee storm water controls at construction sites. Complaint at PP 22-23, United States v. Wal-Mart Stores, Inc., supra note 44.[/tippy]
States are also actively pursuing construction storm water violations. In 2005, the San Diego Regional Water Board issued a $1.2 million administrative civil liability complaint [tippy title=”46″ header=”off”]Complaint, No. R9-2005-0059 (Mar. 10, 2005); see also the 2005 news report on the developers of a 1,000-acre subdivision paying a $575,000 fine for violations of California storm water regulations, Sacramento Bee (Sacramento, CA) available at http://www.sacbee.com/content/news/story/13737215p-14579232c/.[/tippy] to JRMC Real Estate, Inc. for alleged violations at the 186-acre Escondido Research and Technology Center (ERTC) construction site in Escondido, California. [tippy title=”47″ header=”off”]See San Diego Regional Water Quality Control Board, Executive Officer’s Report 9 (May 11, 2005), available at http:// www.swrcb.ca.gov/rwqcb9/eo_report/reports/5-11-05%20eo.pdf.[/tippy] The complaint alleged ongoing violations of the California Construction Storm Water Permit (CCSWP), [tippy title=”48″ header=”off”]Complaint, No. R9-2005-0059, supra note 46; National Pollutant Discharge Elimination System (NPDES) General Permit for Storm Water Discharges Associated with Construction Activity (General Permit), Water Quality Order No. 99-08-DWQ. The CCSWP, part of Order No. 99-08-DWQ, is NPDES Permit No. CAS000002, “Waste Discharge Requirements (WDRS) for Discharges of Storm Water Runoff Associated with Construction Activity,” available at http://www.swrcb.ca.gov/stormwtr/docs/finalconstpermit.pdf [hereinafter Order No. 99-08]. Revisions to Order 99-08 are currently being considered, and a revised storm water order is expected in 2007.[/tippy]
including: 82 days of sediment discharge to Escondido Creek directly or indirectly via the City of Escondido’s Municipal Separate Storm Sewer System (MS4), 166 days of inadequately installed Best Management Practices (BMPs), at least 16 days of failure to collect and analyze storm water runoff and to submit monitoring reports, and failure to assess BMPs after storm events. [tippy title=”49″ header=”off”]San Diego Regional Water Quality Control Board, supra note 47.[/tippy]
III. The Construction Industry and Water Quality
In late August of 2005, Hurricane Katrina devastated a portion of the coastal region of Louisiana, Mississippi, and Alabama that President Bush estimated to be larger than the size of Great Britain. [tippy title=”50″ header=”off”]Hurricane Katrina first made landfall just north of Miami, Florida on August 25, 2005, then again on August 29 along the Central Gulf Coast near New Orleans, Louisiana. To date, Katrina is considered the most destructive and costliest natural disaster in the history of the United States. See Wikipedia, Hurricane Katrina, http://en.wikipedia.org/wiki/Hurricane_Katrina (last visited Feb. 11, 2006); see also BBC News, Bush Boosts Katrina Rescue Force: An Extra 17,000 Troops are Being Sent Into the Area of the Southern US Devastated by Hurricane Katrina, Sept. 4, 2005, http://news.bbc.co.uk/2/hi/americas/4211528.stm.[/tippy] Several weeks later, Hurricane Rita slammed into Texas and Louisiana creating further havoc in the region. [tippy title=”51″ header=”off”]Hurricane Rita first struck Florida, and then went on to strike Texas and Louisiana. “A day prior to landfall, the resultant storm surge also reopened some of the levee breaches caused by Hurricane Katrina a month earlier, and reflooded parts of New Orleans. Post-landfall damage was extensive in the coastal areas in southwestern Louisiana and extreme southeastern Texas.” See Wikipedia, Hurricane Rita, http://en.wikipedia.org/wiki/Hurricane_Rita (last visited Feb. 11, 2006).[/tippy] The combined effects from these storm events have been immense in terms of human life, personal suffering, and economic loss. [tippy title=”52″ header=”off”]Id.[/tippy] Repairing the damage to the public infrastructure from these hurricanes will take years, and many parts of the coastal region will never be the same.
Extreme weather events provide important lessons about flood control management and coping with natural disasters. At the less extreme end of the weather spectrum, these storm events should also focus attention on the importance of effective storm water planning and management. [tippy title=”53″ header=”off”]See, e.g., Carol Brzozowski, Hurricanes: The Effects on Stormwater Management, Stormwater: The Journal for Surface Water Quality Professionals 9 (Mar./Apr. 2005), available at www.stormh2o.com/sw_0503_hurricanes.html.[/tippy]
These hurricanes are contemporary reminders of the importance of clean water as a basic human need, one that is also essential to the nation’s health, economy, security, and ecology. A fundamental thesis can be advanced. Clean water is critical to human health and welfare, to preserving habitat and ecological diversity, and to insuring viable populations of wildlife and aquatic life. A corollary to this thesis is that controlling the pollution in storm water runoff is often directly linked to clean water. Unless effectively regulated, storm water runoff from construction activities has the potential to contaminate and degrade the nation’s waters–our streams, creeks, lakes, reservoirs, and coastal waters.
The relationship between construction activities and water quality is important to understanding storm water regulation. Both the 2003 Pew Oceans Commission [tippy title=”54″ header=”off”]Pew Oceans Commission, America’s Living Oceans: Charting a Course for Sea Change, (May 2003), available at http://www.pewoceans.org [hereinafter America’s Living Oceans].[/tippy] and the 2004 U.S. Commission on Ocean Policy [tippy title=”55″ header=”off”]U.S. Commission on Ocean Policy, An Ocean Blueprint for the 21st Century (Jul. 22, 2004), available at http://www.oceancommission.gov/documents/full_color_rpt/000_ocean_full_report.pdf [hereinafter Ocean Blueprint].[/tippy] documented serious declines in the health of oceans and coastal areas, the severe degradation of natural resources that depend on healthy oceans and coastal areas, and the threat to economic activities based on these resources. [tippy title=”56″ header=”off”]America’s Living Oceans, supra note 54, at v; Ocean Blueprint, supra note 55, at 1.[/tippy] The Pew Report recognized that runoff is a major component of this threat to our oceans. [tippy title=”57″ header=”off”]America’s Living Oceans, supra note 54 at vi.[/tippy] Runoff from general development activities in our coastal regions is causing the decline of ocean wildlife and the collapse of ocean ecosystems. [tippy title=”58″ header=”off”]Id.[/tippy] The Pew Report, for example, cites estimates that the oil running off our streets and driveways and flowing into the oceans from storm water is equal to an Exxon Valdez oil spill every eight months. [tippy title=”59″ header=”off”]Id. In 1989, the grounding of the ship Exxon Valdez caused the release of over 11 million gallons of oil in Alaska’s water and polluted some 1200 miles of shoreline. Largely in response to this event, Congress enacted the Oil Pollution Act of 1990 (OPA), which contains nine separate titles ranging from general provisions regarding oil pollution down to specific requirements. 33 U.S.C.A. §§ 2701-2761 (West 2001).
The U.S. Environmental Protection Agency estimates that American households generate 193 million gallons of used oil annually, some of which is improperly disposed of. It estimates that households improperly dump the equivalent of 17 Exxon Valdez oil spills each year. See EPA, Featured Story: Stormwater Runoff, available at http://www.epa.gov/Region9/water/npdes/stormwater-feature.html (last visited Feb. 24, 2006).[/tippy] The Commission also reports that “more than 13,000 beaches were closed or under pollution advisories in 2001 [from runoff,] an increase of 20 percent from the [previous year].” [tippy title=”60″ header=”off”]America’s Living Oceans, supra note 54, at 4.[/tippy] The U.S. Commission Report also observes that increased development increases sediment flows and contributes to coastal water pollution. [tippy title=”61″ header=”off”]Ocean Blueprint, supra note 55, at 14-15.[/tippy]
States have also recognized runoff as a major source of impaired water quality. [tippy title=”62″ header=”off”]See, e.g., Oliver A. Houck, The Clean Water Act TMDL Program: Law, Policy and Implementation 4 (Envtl. Law Inst., 2d ed. 2002).[/tippy] Every state and every major watershed in the United States is under similar assault from unregulated or under-regulated sources of runoff. [tippy title=”63″ header=”off”]Id. Basing regulation on watershed principles is further complicated by the fact that political boundaries and administrative institutions typically do not follow the natural topographical configuration of watersheds. In California, for example, “the average… county includes portions of six different watersheds.” John T. Woolley et al., The California Watershed Movement: Science and the Politics of Place, 42 Nat. Resources J. 133, 136 (2002).[/tippy] In northern Wisconsin, the runoff assault is from dairy farms, in North Carolina, it is from hogs, and in Oregon, it is from clear-cutting of forests. [tippy title=”64″ header=”off”]Houck, supra note 62.[/tippy] Housing and urban development also contribute to the runoff problem in many watersheds throughout the nation. [tippy title=”65″ header=”off”]Id.[/tippy] The California legislature has stated that unregulated storm water runoff is a leading cause of contamination of its surface water and groundwater. [tippy title=”66″ header=”off”]See State Water Resources Control Boards & Regional Water Quality Control Boards, Strategic Plan 7 (Nov. 15, 2001), available at http://www.waterboards.ca.gov/strategicplan/docs/01strategic_plan.pdf.[/tippy]
In the National Water Quality Inventory: 2000 Report [tippy title=”67″ header=”off”]National Water Quality Inventory: 2000 Report (EPA Aug. 2002), available at http://www.epa.gov/305b/2000report/.[/tippy] to Congress, the EPA cites urban storm water runoff and discharges from storm sewers as primary causes of impaired water quality. [tippy title=”68″ header=”off”]Id. at ES-3; EPA, United States v. Wal-Mart Stores, Inc. Fact Sheet, at 3 (May 12, 2004) (printed as revised Dec. 28, 2004), available at http://www.epa.gov/compliance/resources/cases/civil/cwa/walmart2-fs.pdf.[/tippy] The 2000 Report notes that “[t]hese sources contributed to 13 percent of impaired rivers and streams, 18 percent of impaired lakes, 55 percent of impaired ocean shorelines, and 32 percent of impaired estuaries.” [tippy title=”69″ header=”off”]EPA, U.S. v. Wal-Mart Stores, Inc. Fact Sheet, supra note 68, at 3.[/tippy] Little doubt exists as to the connection between storm water runoff and water quality.
The EPA maintains that uncontrolled storm water runoff from industrial facilities and construction sites harms both the environment and public health. [tippy title=”70″ header=”off”]Id. at 2-4.[/tippy] The EPA argues that “[s]everal studies reveal that storm water runoff from urban areas can include a variety of pollutants, such as sediment, bacteria, organic nutrients, hydrocarbons, metals, oil and grease.” [tippy title=”71″ header=”off”]Id. at 2.[/tippy]
While the links between construction activities, storm water runoff, and impaired water quality seem well established, the construction industry argues that a more nuanced analysis is important to considering water quality priorities. [tippy title=”72″ header=”off”]See, e.g., letter from Gerald M. Howard, Executive Vice President & CEO, National Association of Home Builders, to Information Quality Guidelines Staff (July 9, 2004), at 3.[/tippy] It argues that the EPA’s position on the role of the construction industry confuses the categories of sources contributing to the storm water runoff problem. [tippy title=”73″ header=”off”]Id.[/tippy] The industry maintains that the category of “‘urban runoff and storm sewers,”’ which is the focus of much of the policy and priority discussion by the EPA, is entirely different from the category of “‘storm water runoff from industrial and construction sites.”’ [tippy title=”74″ header=”off”]Id. (internal citations omitted).[/tippy] It contends that the admittedly dangerous content of urban runoff, which often includes “pathogens, oil and grease, and metals are seldom found in storm water runoff from construction sites.” [tippy title=”75″ header=”off”]Id. at 3-4.[/tippy]
The construction industry seeks to buttress its claim that the EPA is firing at the wrong target by citing the EPA’s own research. This research reveals that
[c]onstruction activities during site development are not believed to be major contributors of these contaminants [oil and grease] to storm water runoff. Improper operation and maintenance of construction equipment at construction sites, as well as poor housekeeping practices (e.g., improper storage of oil and gasoline products), could lead to leakage or spillage of products that contain hydrocarbons, but these incidents would likely be small in magnitude and managed before off-site contamination could occur. [tippy title=”76″ header=”off”]EPA, Environmental Assessment of Construction and Development Proposed Effluent Guidelines (June 2002), at 2-11.[/tippy]
In short, the building industry complains that often repeated generalizations about the runoff problem are misdirected against the construction industry, and that the scientific links between construction activities and the urban runoff, and the storm water problem are substantially missing. [tippy title=”77″ header=”off”]Letter from Gerald M. Howard, supra note 72, at 8.[/tippy] From the building industry’s perspective, the bottom line is clear: “[i]f [the] EPA intends to continue to single out residential builders for enforcement attention, [the] EPA will need to provide a different justification.” [tippy title=”78″ header=”off”]Id. at 11.[/tippy]
However, additional justifications for focusing on the construction industry do exist to support the mandate for regulatory action. Oftentimes, the first activity undertaken at a construction site involves preparing the land by removing unnecessary vegetation and grading. [tippy title=”79″ header=”off”]40 C.F.R § 122.26(15)(i) states that storm water discharges from “small construction activity does not include routine [road] maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original purpose of the facility.” Id. To the extent that road construction and maintenance involves the development of the land for agricultural activities, it may be exempt by exclusion from the definition of a PS. Clean Water Act § 502(14), 33 U.S.C. § 1362(14) (2000) (defining point source, or PS). See also, 63 Fed. Reg. 7858, 7876 (Feb. 17, 1998) (neither agricultural runoff nor development of land for agricultural purposes are regulated by the NPDES program).[/tippy] This means that the exposed soil is highly susceptible to erosion from storm events. Additional construction activities typically follow that reduce the permeability of the soil to naturally absorb precipitation, such as building roads and sidewalks. Thus, and perhaps not surprisingly, erosion and sediment transfer to rivers, streams, and other receiving waters during and after construction is a well documented phenomenon affecting water quality. [tippy title=”80″ header=”off”]See, e.g., National Water Quality Inventory: 2000 Report, supra note 67, at Table A-4 (providing data from various locations, including site-specific data).[/tippy]
The water quality problems from erosion include increased turbidity, which results in the blockage of light as well as decreased oxygen, in the receiving waters. [tippy title=”81″ header=”off”]EPA, U.S. v. Wal-Mart Stores, Inc. Fact Sheet, supra note 68, at 3.[/tippy] This condition may result “in loss of in-stream habitat for fish and other aquatic species” and plants. [tippy title=”82″ header=”off”]Id.[/tippy] In addition, sediment-laden runoff carried to the receiving waters can “kill fish directly, destroy spawning beds, and suffocate fish eggs and bottom dwelling organisms.” [tippy title=”83″ header=”off”]Id.[/tippy] Sediment discharges from construction sites to MS4 conveyance systems also have the potential to clog pipes and pumps, and impair the systems’ effectiveness.
Most construction activities also alter the natural landscape through compaction and excavation. [tippy title=”84″ header=”off”]Id.[/tippy] These necessary building activities also increase the potential for runoff and erosion from construction sites, thus increasing the potential for sediment transport to the receiving waters. [tippy title=”85″ header=”off”]Id.[/tippy] In California, the State Water Board has found that construction activities [tippy title=”86″ header=”off”]Typical construction activities with the potential to produce off-site sediment transfers include, for example, exposed soil areas, active grading areas, poorly stabilized slopes, the lack of perimeter controls, areas of concentrated flow to unprotected soils, and unprotected soil stockpiles. Order No. 99-08, supra note 48.[/tippy] are a potential significant source of pollutants and have the reasonable potential to contribute to an excursion above the Water Quality Standards (WQSs) [tippy title=”87″ header=”off”]The CWA provides for WQSs and associated implementation plans. Clean Water Act § 303, 33 U.S.C. § 1313 (2000).[/tippy] for sediment. [tippy title=”88″ header=”off”]Order No. 99-08, Water Discharge Requirements (General Permit), at P 8 (1999), available at http://www.swrcb.ca.gov/stormwtr/construction.html.[/tippy]
The movement of trucks and heavy construction equipment also can “track” soil to adjacent streets in much the same way that dirt and mud can be “tracked” into a house from outside during and after rain events unless preventive steps are taken. To the extent that pollutants other than sediment [tippy title=”89″ header=”off”]The Small Business Liability Relief and Brownfields Revitalization Act, Pub. L. No. 107-118, 115 Stat. 2356 (Jan. 11, 2002), which amended the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), encourages the development of contaminated commercial property. A “brownfield” is “real property the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.” CERCLA § 101(39)(A), 42 U.S.C. § 9601(39)(A) (2000). Storm water runoff from “brownfield” re-development raises special concerns beyond sediment transfers.[/tippy] are physically present, such as construction debris and other building-related detritus, they also may be carried off the site to the receiving waters by the storm water flows unless effectively controlled. [tippy title=”90″ header=”off”]U.S. v. Wal-Mart Stores, Inc. Fact Sheet, supra note 68, at 3.[/tippy]
Notwithstanding the protests from the building industry, the focus on the construction industry is appropriate for another reason. Many of the enforcement claims against the construction industry are for failing to file for NPDES permits as required by the CWA. [tippy title=”91″ header=”off”]Petersen, supra note 40, at 46.[/tippy] In these cases, the appropriateness of the focus is straightforward. The CWA requires that action be taken against such non-filers. [tippy title=”92″ header=”off”]Clean Water Act § 402(b)(7), 33 U.S.C. § 1342(b)(7) (2000).[/tippy] In addition, storm water source control and pollution prevention, as distinguished from remediating the water quality impairment after the fact, is desirable as a matter of public policy. The public benefits of prevention and control are only available after non-filers are brought within the regulatory framework of the NPDES storm water permitting program.
Once a construction company files a NOI, the next regulatory challenge becomes assuring compliance with the CGP requirements. This assurance normally is accomplished through inspection and, if necessary, enforcement. Regulatory enforcement actions challenging the adequacy of the BMPs employed at a particular construction site by an owner or operator often involve some degree of regulatory discretion in determining compliance. [tippy title=”93″ header=”off”]Petersen, supra note 40, at 46. “The magnitude of this interpretation of a permit violation is seen when one considers that a large site may have hundreds of different BMPs in place.” Id. at 47.[/tippy] But as the following photographs attest, some violations can be clearly identified.
Sediment from construction site to unnamed tributary of Santa Gertrudis Creek. Roripaugh Ranch Project, Riverside County, California, March 17, 2003. [tippy title=”94″ header=”off”]Source on file with author.[/tippy]
Storm drain inlet is not protected by adequate BMPs to prevent sediment from entering the storm drain. Pulte Homes Construction site, Eastlake, California, February 3, 2004. [tippy title=”95″ header=”off”]Source on file with author.[/tippy]
IV. The Construction Industry and Clean Water Act (CWA) Storm Water Regulation
The discretion invested in regulatory agencies to regulate the storm water discharges from construction activities requires an understanding of the structure of the CWA. The CWA provides that the “discharge” [tippy title=”96″ header=”off”]Clean Water Act § 502(12), 33 U.S.C. § 1362 (12) (2000) (“The term ‘discharge of a pollutant’ and the term ‘discharge of pollutants’ each means (A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.”).[/tippy] of any “pollutant” [tippy title=”97″ header=”off”]The term “pollutant” is broadly defined in Clean Water Act § 502(6), 33 U.S.C. § 1362(6) (2000) (“The term ‘pollutant’ means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.”).[/tippy] into “navigable waters” [tippy title=”98″ header=”off”]The constitutional basis for the Clean Water Act is the Commerce Clause. U.S. Const. Art. I, § 8. For much of the nation’s history, Congress believed the commerce power applied only to navigable waters. Congress used this traditional touchstone in the CWA, but also stretched the meaning of “navigable waters.” Thus, as used in the CWA the term “navigable waters” broadly “means the waters of the United States, including the territorial seas.” Clean Water Act § 502(7), 33 U.S.C. § 1362(7) (2000). The term “navigable waters” has been broadly applied to “waters” that are not traditionally navigable. See e.g., United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123-24 (1985) (holding that wetlands adjacent to navigable waters are subject to CWA jurisdiction).
Determining the precise boundaries of the meaning of the term “navigable waters” for jurisdictional purposes has proven illusive as evidenced by the varying interpretations of the meaning and application of the decision in Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers. 531 U.S. 159 (2001). In 2006, the Supreme Court will hear two cases from the Sixth Circuit involving the touchstone of “navigable waters” and its application to wetlands. Carabell v. United States Army Corps of Engineers, 391 F.3d 704 (6th Cir. 2004), cert. granted Carabell v. United States Army Corps of Engineers, 126 S. Ct. 415 (2005) and United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004), cert. granted Rapanos v. United States, 126 S. Ct. 414 (2005). The Rapanos case describes the varying interpretations of the SWANCC decision by the federal appellate courts. Id. at 638. The Supreme Court decisions in Carabell and Rapanos are apt to have important consequences to the building industry because the discharge of storm water to navigable waters is a prerequisite to the assertion of jurisdiction under the CWA.[/tippy] from a “point source” (PS) [tippy title=”99″ header=”off”]Clean Water Act § 502(14), 33 U.S.C. § 1362(14) (2000) (“The term ‘point source’ means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”).[/tippy] is unlawful unless it is in compliance with an NPDES permit. [tippy title=”100″ header=”off”]Clean Water Act § 301(a), 33 U.S.C. § 1311 (2000).[/tippy] These four touchstones (discharge, pollutant, navigable waters, and point source) are prerequisites to the application of the NPDES Program. [tippy title=”101″ header=”off”]Clean Water Act § 402, 33 U.S.C. § 1342 (2000) (describing the NPDES system).[/tippy] However, an important statutory exemption from the definition of PS exists for agricultural storm water discharges. [tippy title=”102″ header=”off”]Clean Water Act § 502(14), 33 U.S.C. § 1362(14) (2000). The application of the agricultural exemption to runoff has created controversy. The EPA has narrowly construed this storm water exclusion to apply to the runoff from land applications of fertilizers only to the extent that the application is in accordance with proper agricultural practices. 66 Fed. Reg. 2960, 3029-30 (Jan. 12, 2001). See also Concerned Area Residents for the Env’t v. Southview Farm, 34 F.3d 114 (2d Cir. 1994) (holding that runoff during a rain event from a Concentrated Animal Feeding Operation (CAFO) that was primarily caused by the excessive application of liquid manure to the land may violate the CWA notwithstanding the storm water exemption). This decision by the EPA applies to CAFOs which are included within the statutory definition of PS. Clean Water Act § 502(14), 33 U.S.C. § 1362(14) (2000) (identifying a CAFO as a point source).
In California, the term “waste discharge requirements” is the equivalent of the term “permits” as used in the CWA. Cal. Water Code § 13374. While federal law contains a general exemption for agricultural activities that do not fit within the CAFO category, state law may not be as generous. The California Water Code, for example, provides that anyone discharging or proposing to discharge waste that could affect water quality must file a Report of Waste Discharge (ROWD). Cal. Water Code § 13260. Unlike federal law, no automatic exemption from this requirement exists. Thus, a ROWD is required under state law for irrigation return flows and storm water runoff from agricultural lands unless a waiver is granted under the provisions contained in Water Code § 13269.[/tippy]
In 1987, CWA Section 402(p) expressly designated storm sewer discharges to navigable waters as “point sources.” [tippy title=”103″ header=”off”]Clean Water Act § 402(p), 33 U.S.C. § 1342(p) (2000).[/tippy] As a result, both MS4 and industrial storm water dischargers were expressly identified as being subject to the NPDES permit program requirements of the CWA. [tippy title=”104″ header=”off”]Clean Water Act § 402(p)(3)(A)-(B), 33 U.S.C. § 1342(p)(3)(A)-(B) (2000).[/tippy] This addition to the law was an important step in storm water regulation.
The EPA has defined storm water discharges associated with industrial activity in a comprehensive manner. The definition includes the addition of any pollutant from any system used for collecting and conveying storm water within eleven industrial categories. [tippy title=”105″ header=”off”]40 C.F.R. §§ 122.26(b)(14)(i)-(xi) (2004).[/tippy] Construction activities, subject to some statutory exceptions, [tippy title=”106″ header=”off”]Clean Water Act § 402(l), 33 U.S.C. § 1342(l) (2000).[/tippy] are subject to the industrial storm water permitting requirements of Section 402(p). [tippy title=”107″ header=”off”]Clean Water Act § 402(p).[/tippy] The most recent set of federal regulations, which went into effect in 2003, expanded the scope of coverage to construction activities that disturb from one to five acres. [tippy title=”108″ header=”off”]Small construction activities may apply for a waiver from the NPDES permitting requirements contained in the General Permit. NPDES General Permit, supra note 15 Construction Activities, at P1.4, Appendix D.[/tippy] Construction activities disturbing five acres or more were regulated prior to 2003. [tippy title=”109″ header=”off”]40 C.F.R. § 122 (2003).[/tippy]
A NPDES permit contains various standard conditions, such as those relating to monitoring and reporting. [tippy title=”110″ header=”off”]See NPDES General Permit, supra note 15, at PP 4.3, 9(A)(1)(d).[/tippy] One of the most important permit conditions relates to the “effluent limitation” on the quantities or concentrations of pollutants that can be legally discharged pursuant to Section 301. [tippy title=”111″ header=”off”]Clean Water Act § 301, 33 U.S.C. § 1311 (2000).[/tippy] The term “effluent limitation” is broadly defined, and encompasses “any restriction . . . on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters” of the United States. [tippy title=”112″ header=”off”]Clean Water Act § 502(11), 33 U.S.C. § 1362(11) (2000).[/tippy]
Two types of effluent limitation exist and operate in tandem. One type is prescribed by the EPA using nationally uniform, technology-based requirements. [tippy title=”113″ header=”off”]Clean Water Act §§ 301(b)(1)(A), (2)(A), 33 U.S.C. § 1311(b)(1)(A), (2)(A) (2000). The EPA is responsible for establishing effluent limitations for various types of point sources based on what the available technology could accomplish. This approach avoids the technical difficulty of evaluating individual effluent limits for discharges. James Salzman and Barton H. Thompson, Jr., Environmental Law and Policy 129 (2003).[/tippy] When a technology-based effluent limitation has not been promulgated, which is the situation with respect to construction storm water regulation, the permitting authority must use its best professional judgment (BPJ) in formulating the effluent limitation. [tippy title=”114″ header=”off”]See Clean Water Act § 402(a)(1)(B) (The Administrator may issue a permit after an entity meets “such conditions as the Administrator determines are necessary to carry out the provisions of this Act.”), 33 U.S.C. § 1342(a)(1)(B) (2000); see also 40 C.F.R. § 125.3(d) (2004) (listing factors that the permit writer must consider in setting case-by-case limitations).[/tippy] The other type is a water quality-based effluent limitation (WQBEL) derived from the impact of the discharge on the receiving water. [tippy title=”115″ header=”off”]See Clean Water Act § 301, 33 U.S.C. § 1311 (2000).[/tippy] Congress recognized that both types of limitation were necessary because meeting technology-based standards at a point of discharge was no guarantee that the water quality in the receiving water would not degrade below acceptable levels. [tippy title=”116″ header=”off”]See EPA v. State Water Res. Control Bd., 426 U.S. 200, 205 n.12 (1976).[/tippy] Technology-based requirements do not consider cumulative impacts of a discharge on the receiving water, whereas WQBELs do. [tippy title=”117″ header=”off”]See Clean Water Act § 304(b)(4)(B), 33 U.S.C. § 1314(b)(4)(B) (2000).[/tippy]
Technology-based limitations, which are derived from technological and economic considerations for particular discharge categories, [tippy title=”118″ header=”off”]See E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 128 (1977) (holding, among other things, that effluent limitations for existing plant sources for 1977 and 1983 are to be set by regulation with some allowances “made for variations in individual plants,” but not solely on an individual basis during the permit issuance process).[/tippy] are based on the pollution reducing performance achieved by using established pollution control technologies. [tippy title=”119″ header=”off”]See Clean Water Act § 301(b), 33 U.S.C. § 1311(b) (2000); see also 40 C.F.R. § 122.44 (2004).[/tippy] As a general matter, technology-based limitations, which vary by the nature of the pollutant being discharged, are commonly expressed in numeric or narrative terms. [tippy title=”120″ header=”off”]BMPs may be used when “[a]uthorized under section 402(p) of the CWA for the control of storm water discharges [or when] [n]umeric effluent limitations are infeasible.” 40 C.F.R. § 122.44(k)(2)-(3) (2004). The EPA recently decided against adopting effluent limitation guidelines for storm water discharges associated with construction activity, and instead decided to rely on “existing programs, regulations, and initiatives at the Federal, State, and local level.” 40 C.F.R § 450 (2004).
The issue of whether direct discharges of toxic pollutants from non-construction, industrial storm water activities is subject to numeric limitations is currently on appeal before the California Court of Appeal for the Fourth Appellate District in Divers’ Envtl. Conservation Org. v. State Water Res. Control Bd., San Diego Superior Court, Case No. GIC819689 (case no. D046112) (2005).[/tippy] As one might expect, a numeric criterion establishes a quantitative limitation on pollutant concentrations or levels, whereas a narrative criterion is a descriptive, non-numeric limitation. [tippy title=”121″ header=”off”]See, e.g., 40 C.F.R. § 131.3(b) (2004).[/tippy]
The relevant technology used to determine a technology-based limitation depends on whether the discharged pollutant is classified as “toxic,” [tippy title=”122″ header=”off”]Clean Water Act § 307(a)(1), 33 U.S.C. § 1317(a)(1) (2000) (referring to a list of toxic pollutants subject to the CWA).[/tippy] “conventional,” [tippy title=”123″ header=”off”]Clean Water Act § 304(a)(4), 33 U.S.C. § 1314(a)(4) (2000) (conventional pollutants are pollutants that include, but are not limited to “pollutants classified as biological oxygen demanding, suspended solids, fecal coliform, and pH.”).[/tippy] or “nonconventional.” [tippy title=”124″ header=”off”]Clean Water Act § 301(g)(4)(B)(iv), 33 U.S.C. § 1311(g)(4)(B)(iv) (2000) (Pollutants that are not specifically classified as “toxic” or “conventional” are considered “nonconventional.”).[/tippy] Once the effluent limitation is determined for the type of pollutant based on the appropriate technology, such as Best Available Technology (BAT), the PS discharger may comply with the effluent limitation in whatever way it chooses. [tippy title=”125″ header=”off”]See Clean Water Act §§ 301(b)(2)(A), 307(a)(2), 33 U.S.C. §§ 1311(b)(2)(A), 1317(a)(2) (2000).[/tippy] The particular technology employed is left to the discretion of the discharger. [tippy title=”126″ header=”off”]See Clean Water Act § 301(b)(2)(A), 33 U.S.C. § 1311(b)(2)(A).[/tippy]
This approach to determining an effluent limitation or compliance standard is considered “performance-based” because the EPA or state regulatory agency is concerned solely with performance, and not with the specific processes or management techniques employed by the discharger to meet the effluent limitation. [tippy title=”127″ header=”off”]Clean Water Act § 306(a)(1), 33 U.S.C. § 1316(a)(1) (2000).[/tippy] In fact, prescriptive performance methods, such as specifying the process or technique, may be precluded. [tippy title=”128″ header=”off”]Cal. Water Code § 13360 (2005) (prohibits waste discharge requirements from specifying the “design, location, type of construction, or particular manner” of compliance).[/tippy]
In contrast, WQBELs [tippy title=”129″ header=”off”]See Clean Water Act § 303(e)(3)(A), 33 U.S.C. § 1313(e)(3)(A) (2000).[/tippy] are based on the amount of pollutants allowed in a defined receiving water body [tippy title=”130″ header=”off”]See Clean Water Act § 303(d), 33 U.S.C. § 1313(d) (2000) (establishing states’ roles in determining water quality standards).[/tippy] after taking into account the beneficial uses of the receiving water and its assimilative pollutant capacity. [tippy title=”131″ header=”off”]See Clean Water Act § 304(b), 33 U.S.C. § 1314(b) (2000).[/tippy] They are calculated based on the impact of the waste discharge. [tippy title=”132″ header=”off”]Clean Water Act § 102(c)(2)(A), 33 U.S.C. § 1313(c)(2)(A) (2000) (mandating that state planning agencies establish a comprehensive pollution control plan).[/tippy] Water Quality Standards (WQSs) [tippy title=”133″ header=”off”]In California, WQSs are established through regional water quality control management plans, commonly known as basin plans, which are adopted by the appropriate Regional Water Board after a public hearing. Cal. Water Code §§ 13240, 13244. Basin plans become effective upon approval by the State Water Board. Cal. Water Code § 13245.[/tippy] serve as a general baseline for deriving WQBELs. [tippy title=”134″ header=”off”]See Arkansas v. Oklahoma, 503 U.S. 91, 106 (1992) (holding that the EPA’s requirement that NPDES dischargers must comply with downstream states’ WQS was a reasonable exercise of the agency’s statutory discretion).[/tippy]
WQSs also serve an additional function beyond their connection to WQBELs. The CWA requires states to identify all water bodies for which technology-based effluent limitations are insufficient to meet WQSs. [tippy title=”135″ header=”off”]Clean Water Act § 303(d)(1)(A), 33 U.S.C. § 1313(d)(1)(A) (2000); see also 40 C.F.R. § 130(h) (2004).[/tippy] Thus, WQSs also provide the baseline for remedial action under the Total Maximum Daily Load (TMDL) program. [tippy title=”136″ header=”off”]Clean Water Act § 303(d), 33 U.S.C. § 1313(d) (2000). A TMDL is a written, quantitative plan and analysis for attaining and maintaining WQS for a specific body of water and pollutant. 40 C.F.R. § 130.2(i) (2005).[/tippy] The connection between WQSs and TMDLs is relevant to construction activities because sediment is a commonly recognized pollutant that has triggered Section 303(d), TMDL listings. [tippy title=”137″ header=”off”]Water bodies listed under Section 303(d) for sediment are identified in Order No. 99-08, supra note 48, at Attachment 3, available at http://www.swrcb.ca.gov/stormwtr/construction.html (last visited Feb. 12, 2006).[/tippy]
WQBELs are established at levels designed to ensure that WQSs are not exceeded in the receiving water. [tippy title=”138″ header=”off”]See Clean Water Act § 303(d)(1), 33 U.S.C. § 1313(d)(1) (2000).[/tippy] One of the factors in determining a WQBEL is the extent to which the assimilative capacity of the receiving waters will be allowed. [tippy title=”139″ header=”off”]Clean Water Act § 303(d)(1)(D), 33 U.S.C. § 1313(d)(1)(D) (2000).[/tippy] If a WQBEL is calculated without any allowance for assimilative capacity of the receiving waters, a discharge in excess of the WQBEL would constitute a permit violation without exceeding the WQS. Thus, the often repeated statement that “simply put, WQBEL’s implement [WQSs]” [tippy title=”140″ header=”off”]See e.g., Cmtys. for a Better Env’t v. State Water Res. Control Bd., 34 Cal. Rptr. 3d 396, 399 (1st Dist. 2005).[/tippy] is potentially misleading.
The timing and variability of the pollutants in storm water discharges present a different set of concerns than those associated with a typical steady-state discharge common to many industrial wastewater discharges. Construction activities are both dynamic and itinerant. They are dynamic because the palette of potential pollutants changes as a construction project progresses toward completion. [tippy title=”141″ header=”off”]See Lower Platte South Natural Resource District City of Lincoln Watershed Management, Stormwater Pollution Prevention Plan (SWPPP) Guidance and Design Criteria, at P A4, available at www.lpsnrd.org/docs/Permits/swppp.pdf (last visited Feb. 12, 2006) (because project plans are subject to change, the SWPPP must be dynamic in order to be effective).[/tippy] But they are also itinerant because once the construction project is finished, the builder typically moves to a new location with different site-specific concerns.
Storm water permits attempt to take into consideration these different concerns by prohibiting discharges that cause or contribute to the exceedence of WQSs in the receiving water. [tippy title=”142″ header=”off”]NPDES General Permit, supra note 15, at Part 1, P 1.3.C.4; see Clean Water Act § 402(p)(3)(B)(iii), 33 U.S.C. § 1342 (p)(3)(B)(iii) (2000) (permits for discharges from municipal storm sewers shall require reduced discharge to the maximum extent practicable); see also Bldg. Ind. Ass’n of San Diego County v. State Water Res. Control Bd., 22 Cal. Rptr. 3d 128, 130-31 (2004), reh’g denied Jan. 4, 2005 (upholding the discretionary authority of California to prohibit MS4 discharges that cause or contribute to an exceedence of WQSs).[/tippy] But this approach creates some regulatory uncertainty because WQSs do not easily translate into numeric WQBELs that can be applied at the discharge point or PS. Simply using the numeric component of a WQS would result in most, if not all, storm water discharges violating the WQBEL, which would expose the builders to regulatory enforcement actions.
Within this effluent limitation framework, Congress established a two-phased approach to storm water regulation when it added Section 402(p). [tippy title=”143″ header=”off”]Clean Water Act § 402(p)(4), 33 U.S.C. § 1362 (p)(4) (2000).[/tippy] In 1990, the EPA adopted the Phase I final regulations for storm water discharges associated with industrial activities. [tippy title=”144″ header=”off”]55 Fed. Reg. 47,990 (Nov. 16, 1990) (codified as 40 C.F.R. § 122.26).[/tippy] These regulations required construction sites larger than five acres to secure NPDES storm water permits for PS discharges to waters of the United States. [tippy title=”145″ header=”off”]See National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges, 55 Fed. Reg. 47,990 (Nov. 16, 1990) (codified as 40 C.F.R. § 122.26(b)(14)(x)). The EPA’s Phase I Rule regulating construction sites that were only in excess of five acres was found “arbitrary and capricious” in Natural Res. Def. Council v. EPA, 966 F.2d 1292, 1306 (9th Cir. 1992).[/tippy]
The regulatory ratchet applied to construction activities was tightened by the Phase II Rule, which became effective in 2003. [tippy title=”146″ header=”off”]EPA, Phase II Storm Water Regulations, 64 Fed. Reg. 68,722 (Dec. 8, 1999) (codified as 40 C.F.R. pts 9, 122, 123, 124).[/tippy] It also requires discharges from “small construction sites,” as well as dischargers from small MS4s, to be regulated. [tippy title=”147″ header=”off”]Id.[/tippy] To avoid “small” developers from gaming the system to avoid regulation, sites less than one acre that are part of a larger development plan are also subject to Phase II regulation. [tippy title=”148″ header=”off”]40 C.F.R. § 122.26(b)(15) (defining “small construction activity”).[/tippy] Thus, for example, a developer cannot avoid storm water regulation by building a commercial structure on a one-half acre parcel that is part of a larger ten-acre retail center.
The Phase I and II storm water regulations are primarily “process-based,” not “performance-based.” [tippy title=”149″ header=”off”]Clean Water Act § 402(a)(1)(B), 33 U.S.C. § 1342(a)(1)(B) (2000); see also 40 C.F.R. § 125.3(d) (2004).[/tippy] Performance-based standards have yet to be developed and applied to storm water discharges, and therefore the permitting authority must develop technology-based limitations based on its BPJ. [tippy title=”150″ header=”off”]See Clean Water Act § 402(a)(1)(B), 33 U.S.C. § 1342(a)(1)(B) (2000); see also 40 C.F.R. § 125.3(d) (2004).[/tippy] Unlike most discharges that are controllable at the PS, the makeup of a storm water discharge is highly variable depending on the severity of a particular storm event, the frequency of storm events, flow rates, absorption capacities of surrounding soils, pollutant types and concentrations, and so on. This variability makes storm water regulation more complex than the typical NPDES waste discharges from a PS.
The concentration of pollutants at the point of discharge may be sampled. [tippy title=”151″ header=”off”]See e.g., EPA, Load Calculation Protocol, Department of Environment and Conservation 2.2.1 (Feb. 2005).[/tippy] But getting a representative storm water sample is difficult because of variability in volume and pollutant loading. As a result, translating storm water discharge information into a workable numeric effluent limitation is difficult. Consequently, the EPA has not yet developed a set of technology-based numeric effluent limitations suitable for the regulation of storm water as it has for other types of PS discharges. [tippy title=”152″ header=”off”]61 Fed. Reg. 57,425, 57,426 (Nov. 6, 1996) (noting that the CWA does not mandate that effluent limitations be numeric).[/tippy] Rather, the EPA has determined that a “process-based” strategy using BMPs is effective to adequately meet WQSs. [tippy title=”153″ header=”off”]EPA, National Pollutant Discharge Elimination System (NPDES) Storm Water Program Questions and Answers (Best Management Practices), Jan. 21, 2004, at 8(on file with author).[/tippy]
A discharger “may” be considered in compliance with the storm water permit by regulators so long as it is implementing its identified “process-based” narrative control measures, such as the siting, construction and operation of BMPs, contained in the SWPPP applicable to the construction site or, if discharging into an MS4, with the control measures identified in the MS4 storm water management plan (SWMP). [tippy title=”154″ header=”off”]See discussion infra Part VII. Dual Regulation of Construction Storm Water Activities.[/tippy] No guarantee exists with respect to compliance, however. [tippy title=”155″ header=”off”]See discussion infra Part VIII. The “Functional” Permit Theory: Divergent Views.[/tippy]
V. The Role of the States in Storm Water Regulation
One might reasonably think that the EPA is at the forefront of construction storm water permitting and enforcement. However, this view is not exactly the case. [tippy title=”156″ header=”off”]Construction industry storm water compliance assistance for each state is included in Construction Industry Compliance Assistance: Status of the Storm Water Phase II Permits as of November 12, 2004, available at http://www.cicacenter.org/ [click on stormwater icon] (last visited Feb. 13, 2006).[/tippy] The CWA recognizes that states are fully competent to manage their own water quality programs so long as they do not compromise federal clean water standards. [tippy title=”157″ header=”off”]Clean Water Act § 101(b), 33 U.S.C. § 1251(b) (2000).[/tippy] Upon application by a state, Section 402(b) of the CWA allows the EPA to authorize a state to exercise NPDES permitting authority providing the state has the adequate authority to carry out the federal program. [tippy title=”158″ header=”off”]Clean Water Act § 402(b), 33 U.S.C. § 1342(b) (2000).[/tippy] The EPA has authorized most states, [tippy title=”159″ header=”off”]The following states have approved programs: Alabama; Arizona; Arkansas; California; Colorado; Connecticut; Delaware; Florida; Georgia; Hawaii; Illinois; Indiana; Iowa; Kansas; Kentucky; Louisiana; Maine; Maryland; Michigan; Minnesota; Mississippi; Missouri; Montana; Nebraska; Nevada; New Jersey; New York; North Carolina; North Dakota; Ohio; Oklahoma; Oregon; Pennsylvania; Rhode Island; South Carolina; South Dakota; Tennessee; Texas; Utah; Vermont; Virginia; Washington; West Virginia; Wisconsin; Wyoming. EPA, State NPDES Program Authority, available at http://cfpub2.epa.gov/npdes/statestats.cfm (last visited Feb. 13, 2006).[/tippy] subject to continuing regulatory oversight by the EPA, [tippy title=”160″ header=”off”]The EPA may withdraw its delegation based on the circumstances set forth in 40 C.F.R. § 123.63(a) (2005).[/tippy] to administer this authority. [tippy title=”161″ header=”off”]See Cal. Water Code § 13370(c) (2004). This section provides:
It is in the interest of the people of the state, in order to avoid direct regulation by the federal government of persons already subject to regulation under state law pursuant to this division, to enact this chapter in order to authorize the state to implement the provisions of the Federal Water Pollution Control Act [CWA] and acts amendatory thereof or supplementary thereto, and federal regulations and guidelines issued pursuant thereto, provided, that the state board shall request federal funding under the Federal Water Pollution Control Act [CWA] for the purpose of carrying out its responsibilities under this program.
Id.[/tippy] Although this oversight pertains to the state’s administration of federal law, a legal reservoir of state constitutional authority, independent of the CWA authorization, exists to deal with state water quality issues. [tippy title=”162″ header=”off”]The California Supreme Court recently rejected the contention of the Natural Resources Defense Council (NRDC) that a state exercising the discretionary authority recognized by the CWA acts pursuant to federal law based on the theory that the CWA incorporates state water policy into federal law. City of Burbank v. State Water Res. Control Bd., 108 P.3d 862, 870 (2005) (“Nothing in the federal Clean Water Act suggests that a state is free to disregard or to weaken the federal requirements for clean water when an NPDES permit holder alleges that compliance with those requirements will be too costly.”).[/tippy]
Most states have EPA-approved programs. [tippy title=”163″ header=”off”]See EPA, State NPDES Program Authority, supra note 159.[/tippy] This fact means that those states administering the industrial storm water provisions are, as a practical matter, at the forefront of both the permitting and the enforcement efforts. To the extent that an enforcement action against a large-scale, development operation involves multiple states, the EPA will assume the controlling enforcement role, although coordination with state regulators is essential. [tippy title=”164″ header=”off”]National Science & Technology Center, Bureau of Land Management, Water Quality Law Summary, Chapter 4: The Total Maximum Daily Load Program, at 5, available at http://www.blm.gov/nstc/WaterLaws/Chap4.html (last visited Feb. 13, 2006).[/tippy]
In late 2005, the EPA’s state-authorization process hit a new legal obstacle. In Defenders of Wildlife v. EPA, [tippy title=”165″ header=”off”]Defenders of Wildlife v. EPA, 420 F.3d 946 (9th Cir. 2005).[/tippy] the Ninth Circuit held that the EPA had taken inconsistent positions during litigation on its legal obligation to consult, pursuant to Section 7 of the Endangered Species Act (ESA), with the federal Fish and Wildlife Service in deciding to transfer CWA permitting authority to Arizona. [tippy title=”166″ header=”off”]See id. at 959-60 (noting that the EPA’s positions in litigation were inconsistent, but that its positions during administrative processes were consistent).[/tippy] Although the case was remanded to the EPA to articulate a coherent and consistent position, which is an arguable basis for narrowly applying the decision, the court was clearly of the opinion that the EPA was unreasonable in concluding that it was required to disregard the impact of the CWA permitting transfer on species protected by the ESA. [tippy title=”167″ header=”off”]Id. at 960-61.[/tippy] To the extent that the EPA does not comply with the federal consultation provisions of the ESA in deciding to approve an NPDES permitting transfer to the state, such a transfer may be in legal jeopardy. [tippy title=”168″ header=”off”]Whether the Defenders of Wildlife decision will or should trigger the re-opening of earlier EPA transfers to other states is beyond the scope of this article.[/tippy]
VI. The California “General Construction Storm Water Permit”
The Porter-Cologne Water Quality Control Act is the principal law governing water quality in California. [tippy title=”169″ header=”off”]Cal. Water Code §§ 13000-14958 (2005).[/tippy] It establishes a comprehensive program to protect water quality under the auspices of the State Water Board and nine semi-autonomous Regional Water Boards. [tippy title=”170″ header=”off”]See Cal. Water Code § 13001 (2005), Order No. 99-08, supra note 48.[/tippy] In Chapter 5.5 of Porter-Cologne, the legislature established a program to comply with the provisions of the CWA. [tippy title=”171″ header=”off”]Cal. Water Code §§ 13370-13389 (2005).[/tippy] As a result, California has been authorized by the EPA to administer the federal NPDES program, including its storm water provisions. [tippy title=”172″ header=”off”]See Order No. 99-08, supra note 48.[/tippy] Porter-Cologne also contains a separate chapter on storm water enforcement practices that is supplementary [tippy title=”173″ header=”off”]Cal. Water Code § 13399.25 (2005).[/tippy] to the Chapter 5.5 provisions authorizing administration of the federal program. [tippy title=”174″ header=”off”]Id. at §§ 13399.25-13399.43.[/tippy]
In California, construction activities are subject to CWA regulation through the General Construction Storm Water Permit (GCSWP). [tippy title=”175″ header=”off”]See Order No. 99-08, supra note 48.[/tippy] A landowner whose development or building project disturbs one or more acres of soil, or whose project is less than one acre but is part of a larger common project, is required either to obtain an individual NPDES permit or to file a NOI with the State Water Board indicating the intent to be covered by the GCSWP. [tippy title=”176″ header=”off”]Id.[/tippy] It specifies that the landowner is responsible for obtaining coverage under the permit by signing the NOI. [tippy title=”177″ header=”off”]California EPA, State Water Resources Control Board, Storm Water Program: Construction Frequently Asked Questions, question number 3, available at http://www.swrcb.ca.gov/stormwtr/constfaq.html (last visited Feb. 13, 2006) [hereinafter Construction FAQs].[/tippy]
The GCSWP is similar to the federal CGP in that it relies on process-based BMPs to control storm water discharges. [tippy title=”178″ header=”off”]See Order No. 99-08, supra note 48.[/tippy] However, unlike the CGP, the GCSWP contains a receiving water limitation that discharges “do not cause or contribute to an exceedence of any applicable water quality standard [WQS].” [tippy title=”179″ header=”off”]Id.[/tippy]
As with the federal CGP, the GCSWP requires a permittee to develop and implement an SWPPP, which has several substantive purposes. First, it identifies likely sources of sediment and other pollutants that will affect the water quality from the construction storm water discharge. [tippy title=”180″ header=”off”]Id.[/tippy] Second, it describes the BMPs that will be used to control, to reduce or to eliminate these sources. [tippy title=”181″ header=”off”]Id.[/tippy] Lastly, the SWPPP identifies the monitoring program that will be used to determine whether the BMPs are working. [tippy title=”182″ header=”off”]See Construction FAQs, supra note 177, at question number 12.[/tippy]
The GCSWP requires that the SWPPP be available at the construction site from the start of the construction activities through the termination of coverage under the permit. [tippy title=”183″ header=”off”]Order No. 99-08 provides: “The SWPPP shall remain on the [construction] site while the site is under construction, commencing with the initial mobilization and ending with termination of coverage under the permit.” Id.[/tippy] But the current permit only requires the SWPPP to be available on-site at the construction location. [tippy title=”184″ header=”off”]Id.[/tippy] This on-site requirement is unnecessarily restrictive in that it hinders private citizens and environmental groups from gaining ready access for the purpose of inspecting and determining the SWPPP’s legal adequacy.
To improve public access to SWPPPs, the Executive Director of the State Water Board recently requested Regional Water Boards to assist members of the public in gaining access to them. [tippy title=”185″ header=”off”]E-mail from Celeste Cantu, Executive Director, to Regional Water Board Executive Officers and Assistant Executive Officers (on file with author).[/tippy] But a stronger nostrum is required than simply encouraging cooperation by Regional Water Boards. The permit itself should reflect the obligation to meet a broader public dissemination policy. With the electronic digitization of records, regulatory agencies should be required, at a minimum, to post NOIs as well as SWPPPs on officially maintained web sites to improve public access. The EPA recently proposed this approach for the 2006 industrial storm water permit applicable to areas of the United States not authorized to administer the NPDES permit program. [tippy title=”186″ header=”off”]EPA, Office of Wastewater Management, View Stormwater NOIs, available at http://www.epa.gov/npdes/stormwater/noisearch (last visited Feb. 13, 2006).[/tippy]
Another concern is the uncertainty with respect to permit compliance. This concern has caused frustration for dischargers, regulators, and environmental groups. [tippy title=”187″ header=”off”]California EPA, State Water Resources Control Board Water Quality, Notice of Public Meeting: National Pollutant Discharge Elimination System (NPDES) Storm Water Program, Meeting of Storm Water Panel of Experts available at http://www.waterboards.ca.gov/stormwtr/docs/panel_notice.pdf (last visited Feb. 14, 2006).[/tippy] The State Water Board has formed a Blue Ribbon panel to assess the potential for making the storm water program more performance-based, and thus more certain. [tippy title=”188″ header=”off”]Id.; see also letter, “State Water Board Process for the Development of Quantitative Measurements for Stormwater Program Compliance” (Aug. 15, 2005), from Karen Ashby, Chair, California Stormwater Quality Association to Bruce Fujimoto, Chief, Storm Water Program, State Water Board, http://www.waterboards.ca.gov/stormwtr/docs/numericcom/casqa.pdf.[/tippy] The panel is tasked with assessing whether it is technically feasible to establish numeric effluent limitations, or some other objective criteria, for inclusion in storm water permits generally, including the general construction storm water permit. [tippy title=”189″ header=”off”]Id.[/tippy]
VII. Dual Regulation of Construction Storm Water Activities
Construction storm water activities are directly regulated as industrial activities. [tippy title=”190″ header=”off”]Clean Water Act § 402(p)(3)(A), 33 U.S.C. § 1342 (p)(3)(A) (2000).[/tippy] They are also potentially subject to regulation under the municipal discharge requirements of Section 402(p). [tippy title=”191″ header=”off”]Clean Water Act § 402(p), 33 U.S.C. § 1342(p) (2000).[/tippy] MS4 permittees, [tippy title=”192″ header=”off”]The Clean Water Act does not define the term “municipal separate storm sewer.” However, it is defined in the storm water regulations at 40 C.F.R. § 122.26(b)(8) (2004):
Municipal separate storm sewer means a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains):
(i) Owned or operated by a State, city, town, borough, county, parish, district, association, or other public body (created by or pursuant to State law) having jurisdiction over disposal of sewage, industrial wastes, storm water, or other wastes, including special districts under State law such as a sewer district, flood control district or drainage district, or similar entity, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under section 208 of the CWA that discharges to waters of the United States;
(ii) Designed or used for collecting or conveying storm water;
(iii) Which is not a combined sewer; and
(iv) Which is not part of a Publicly Owned Treatment Works (POTW) as defined at 40 CFR section 122.2.[/tippy] usually local governments, are required to “effectively prohibit non-stormwater discharges” into their storm sewer conveyance systems. [tippy title=”193″ header=”off”]Clean Water Act § 402(p)(3)(B)(ii), 33 U.S.C. § 1342(p)(3)(B)(ii) (2000).[/tippy]
The MS4 requirements effectively create a dual system of regulation. [tippy title=”194″ header=”off”]See generally 40 C.F.R. Parts 122, 123, and 124 (2004). The EPA places enforcement responsibility on local government to develop and implement regulatory mechanisms to control sediment and erosion and to use sanctions to ensure compliance. 40 C.F.R. § 122.34(b)(4)(ii)(A) (2004).[/tippy] A MS4 permittee is required to enforce its local land use ordinances and accompanying construction permits in a manner that satisfies the above input “into” the conveyance system prohibition as well as the PS discharge requirements output “from” the system. [tippy title=”195″ header=”off”]Clean Water Act § 402(p)(3)(B), 33 U.S.C. § 1342(p)(3)(B) (2000).[/tippy] Thus, a construction storm water discharge may be regulated both on the basis of its connection or discharge into the MS4 and also as an industrial activity.
As a matter of regulatory theory, the MS4 and GCSWP programs are intended to complement and support each other in achieving the shared goal of minimizing pollutant discharges in runoff from construction sites. [tippy title=”196″ header=”off”]See Clean Water Act § 402(p)(3)(B)(ii), 33 U.S.C. § 1342(p)(3)(B)(ii) (2000).[/tippy] MS4 regulation is based on the principle that local government controls most construction activities through the issuance of development and other land use permits. [tippy title=”197″ header=”off”]40 C.F.R. § 122.26(b)(8) (2004).[/tippy] As the lead permitting authority for construction activities, local government therefore has the principal responsibility for controlling the water quality consequences from storm water discharges resulting from its planning, construction, and land use decisions. One area that has received too little attention to date is the importance of coordinating standard MS4 and GCSWP permit requirements, such as monitoring and reporting, for purposes of regulatory consistency. [tippy title=”198″ header=”off”]The detailed analysis of this concern is beyond the scope of this article.[/tippy]
In California, the State Water Board and Regional Water Boards look first to local government to enforce compliance with its applicable ordinances and permits under the MS4 permit. [tippy title=”199″ header=”off”]California EPA, San Diego Regional Water Quality Control Board, Municipal Storm Water Permit–Frequently Asked Questions, question number 12, available at http://www.swrcb.ca.gov/rwqcb9/programs/stormwater/faq.html (last visited Feb. 14, 2006).[/tippy] State regulators have several non-exclusive options when confronted with a construction storm water violation. They may bring an enforcement action directly against the builder-developer of the construction activity for non-compliance with the terms of the GCSWP. [tippy title=”200″ header=”off”]Order No. 99-08, supra note 48.[/tippy] They also may bring an enforcement action against the local government for violating the MS4 permit requirements. [tippy title=”201″ header=”off”]Id.; Clean Water Act § 309(e).[/tippy]
VIII. The “Functional” Permit Theory: Divergent Views
In Environmental Defense Center, Inc. v. EPA, [tippy title=”202″ header=”off”]344 F.3d 832 (9th Cir. 2003), cert. denied, Tex. Cities Coal. on Stormwater v. EPA, 541 U.S. 1085 (2004).[/tippy] the EPA generally prevailed against various administrative, statutory, and constitutional challenges to the Phase II Storm Water Rule regulating small MS4s and small construction sites. [tippy title=”203″ header=”off”]Id. at 840.[/tippy] However, the Ninth Circuit also held that the Rule was legally deficient in certain important respects. [tippy title=”204″ header=”off”]Id.[/tippy] The Rule allows operators to obtain coverage under the CGP simply by filing a NOI. [tippy title=”205″ header=”off”]Id. at 853.[/tippy] Coverage was available without regulatory review by the EPA, and also without public participation on the issuance of the specific NOI and accompanying SWPPP. [tippy title=”206″ header=”off”]Id.[/tippy] The court found that this process violated the express provisions of the CWA. [tippy title=”207″ header=”off”]Envtl. Def. Ctr., Inc., 344 F.3d at 855-56.[/tippy] As a result, the court vacated those parts of the Rule that were procedurally deficient and remanded the matter to the EPA. [tippy title=”208″ header=”off”]Id. at 840.[/tippy]
In 2005, the Second Circuit decided Waterkeeper Alliance, Inc. v. EPA, [tippy title=”209″ header=”off”]399 F.3d 486, 507 (2d Cir. 2005) (holding in part that the EPA’s failure to require substantive permitting agency review of Nutrient Management Plans (NMPs) for Concentrated Animal Feeding Operations (CAFOs), which are point sources under 33 U.S.C. § 1362(14) (2000), violated the CWA).[/tippy] which dealt with the EPA Rule applicable to Concentrated Animal Feeding Operations (CAFOs) and Nutrient Management Plans (NMPs). [tippy title=”210″ header=”off”]Id. at 486.[/tippy] The court applied an “actual discharge” of pollutants standard to navigable waters. [tippy title=”211″ header=”off”]Id. at 505 (finding that in the absence of an “actual” addition of any pollutant to navigable waters from any point, there is no PS).[/tippy] But for our purposes, the Second Circuit’s decision is arguably significant because it cites with approval the Ninth Circuit’s reasoning on the failure to require permitting authority review of the NMP before issuing a permit. [tippy title=”212″ header=”off”]Id. at 500 n.18.[/tippy] According to the court, NMPs for CAFOs, which function similarly to SWPPPs for construction sites, should have been included as part of the permit. [tippy title=”213″ header=”off”]Id. at 500.[/tippy]
A split in the federal circuits occurred several months after the Waterkeeper Alliance decision. [tippy title=”214″ header=”off”]Tex. Indep. Producers and Royalty Owners Ass’n v. EPA, 410 F.3d 964, 978 (7th Cir. 2005).[/tippy] The Seventh Circuit decided Texas Independent Producers and Royalty Owners Association v. EPA. [tippy title=”215″ header=”off”]Id.[/tippy] Unlike the Ninth Circuit, the Seventh Circuit held that construction-project NOIs are not the “functional equivalent” of a permit, and SWPPPs are not subject to the public participation requirements of the CWA. [tippy title=”216″ header=”off”]Id. at 978 n.13.[/tippy]
The “functional equivalent” theory is critical to the application of the “public hearing” and “public availability” requirements found in the CWA. [tippy title=”217″ header=”off”]Id.[/tippy] Section 402(a)(1) sets forth the public hearing requirement: “the Administrator may, after opportunity for public hearing, issue a permit.” [tippy title=”218″ header=”off”]Clean Water Act § 402(a)(1), 33 U.S.C. § 1342(a)(1) (2000).[/tippy]
The precondition to the issuance of a permit is the opportunity for a public hearing. [tippy title=”219″ header=”off”]Id.[/tippy] For the 2003 CGP and its earlier versions, the opportunity for a public hearing was satisfied during the notice and opportunity to comment period. [tippy title=”220″ header=”off”]See generally Envtl. Def. Ctr., Inc., 344 F.3d at 852-53.[/tippy] The question of statutory construction is whether a public hearing is also required upon filing of a NOI, which depends on whether the NOI should be considered the “functional equivalent” of a “permit” or “permit application.” [tippy title=”221″ header=”off”]Id. at 857 (holding NOIs are the functional equivalent to permit applications); see Tex. Indep. Producers and Royalty Owners Ass’n, 410 F.3d at 978 (holding NOIs are not permit applications).[/tippy]
The public availability issue also turns on finding a permit or permit application. Section 402(j) states: “A copy of each permit application and each permit issued under this section shall be available to the public. Such permit application or permit, or portion thereof, shall further be available on request for the purpose of reproduction.” [tippy title=”222″ header=”off”]Clean Water Act § 402(j), 33 U.S.C. § 1342(j) (2000).[/tippy] The problem here also depends on finding the NOI a “permit” or “permit application.” [tippy title=”223″ header=”off”]Tex. Indep. Producers and Royalty Owners Ass’n, 410 F.3d at 978.[/tippy] If it is either, then presumably the SWPPP may be treated as a “portion thereof,” and therefore also subject to the “available to the public” requirement. [tippy title=”224″ header=”off”]Clean Water Act § 402(j), 33 U.S.C. § 1342(j) (2000).[/tippy]
Regardless of whether NOIs or SWPPPs are treated as the functional equivalent of permits, they ought to be subject to the public availability provisions of CWA Section 308(b) [tippy title=”225″ header=”off”]Clean Water Act § 308(b), 33 U.S.C. § 1318(b) (2000).[/tippy] and the requirement that records, including a description of the SWPPP, be available to the public at reasonable times during regular business hours. [tippy title=”226″ header=”off”]40 C.F.R. § 122.34(g)(2) (2004).[/tippy] The posting of electronic copies of NOIs and SWPPPs on officially maintained web sites would aid public access to these important documents without imposing a significant administrative burden. Thus, the more significant legal questions are the application of the public hearing requirement and the public opportunity to meaningfully comment on the SWPPP.
A. Environmental Defense Center, Inc. v. EPA
A closer examination of Environmental Defense Center, Inc. v. EPA [tippy title=”227″ header=”off”]344 F.3d 832 (9th Cir. 2003), cert. denied, Tex. Cities Coal. on Stormwater v. EPA, 541 U.S. 1085 (2004) (denying cert. on the petition of whether the EPA’s Phase II Stormwater Rule violated the Tenth Amendment by coercing local governmental entities either to enforce a federal program or to surrender their police powers).[/tippy] is necessary. The focus was on the legality of the Phase II Rule (Rule). [tippy title=”228″ header=”off”]Id. at 840.[/tippy] Consequently, one might be tempted to argue that the “functional” permit theory should be limited to the operation of the Phase II Rule. One might argue that the functional permit analysis outside the Rule is dicta or that the permitting scheme under the Rule differs from the traditional permitting model. [tippy title=”229″ header=”off”]Id. at 854.[/tippy]
This narrow view of the decision misses important additional considerations that arguably support its broader application. The Second Circuit’s decision in Waterkeeper Alliance v. EPA, [tippy title=”230″ header=”off”]399 F.3d 486 (2d Cir. 2005).[/tippy] which endorsed the Ninth Circuit’s reasoning, suggests that the Ninth Circuit’s reasoning in Environmental Defense Center has broader persuasive appeal than being limited to small MS4s. [tippy title=”231″ header=”off”]See id. at 500 n.18.[/tippy] The Second Circuit captures this point in the following statement: “The demand that permits authorizing municipal storm sewer discharges must ‘require controls’ is, in sum and substance, identical to the demand that permits authorizing discharges from other point sources must ‘assure compliance with’ applicable effluent limitations. Both provisions require regulation of discharges in fact.” [tippy title=”232″ header=”off”]Id.[/tippy] In essence, the narrow focus on the Phase II Rule is a distinction without a difference to the broader point of necessary regulatory oversight to protect water quality.
The critical part of the Ninth Circuit’s reasoning in Environmental Defense Center is found in the following statement adopting a functional equivalent theory: “[T]he EPA’s failure to require review of the NOIs, which are the functional equivalents of permits under the Phase II General Permit option, and its failure to make NOIs available to the public or subject to public hearings contravene the express requirements of the Clean Water Act.” [tippy title=”233″ header=”off”]Envtl. Def. Ctr., Inc., 344 F.3d at 879 (emphasis added).[/tippy] The finding that the NOI was the functional equivalent to a permit was critical because it provides the foundation for the conclusion that the Rule contravenes the CWA requirements that permits be “available to the public” and “subject to public hearings.” [tippy title=”234″ header=”off”]Id. at 857.[/tippy]
Several considerations led the court to conclude that the NOI was the functional equivalent of a permit or permit application. [tippy title=”235″ header=”off”]Id.[/tippy] First is the substantive importance of the NOI pursuant to the Rule. [tippy title=”236″ header=”off”]Id.[/tippy] The NOI, the court reasoned, contains the substantive information necessary to determining whether the statutory effluent limitation standard of “maximum extent practicable” (MEP) has been met. [tippy title=”237″ header=”off”]Id. at 853.[/tippy] The CGP does not contain this information; only the NOI contains it. [tippy title=”238″ header=”off”]Id. at 853-57.[/tippy] Under the Rule, an operator satisfies the statutory requirement to reduce discharges to the MEP upon implementing its identified SWPPP. [tippy title=”239″ header=”off”]40 C.F.R. § 122.34(a) (2004).[/tippy] Thus, the court found that the Rule on the NOI “crosses the threshold from being an item of procedural correspondence to being a substantive component of a regulatory regime.” [tippy title=”240″ header=”off”]Envtl. Def. Ctr., Inc., 344 F.3d at 853.[/tippy]
The Rule states that “[c]ompliance with the conditions of the general permit and the series of steps associated with identification and implementation of the minimum control measures will satisfy the MEP standard.” [tippy title=”241″ header=”off”]64 Fed. Reg. 68,722, 68,754 (Dec. 8, 1999).[/tippy] This aspect of the Rule has an important substantive consequence. By merely implementing the BMPs chosen by the operator, the operator is deemed to meet the MEP effluent limitation requirement. [tippy title=”242″ header=”off”]Envtl. Def. Ctr., Inc., 344 F.3d at 855 n.34.[/tippy] The court reasoned that all an operator needs to do is to decide for itself the steps needed to meet MEP and to implement them. [tippy title=”243″ header=”off”]Id. at 855.[/tippy] Without a mandatory system of regulatory review of the NOI and accompanying SWPPP, nothing prevents an operator from either misunderstanding or misrepresenting its own predetermined storm water compliance. [tippy title=”244″ header=”off”]Id.[/tippy] In the end, the Rule provides no system of regulatory review to assure that the storm water measures chosen and implemented by the operator in fact reduce the discharges to the MEP. [tippy title=”245″ header=”off”]Id.[/tippy]
Once the “functional permit” theory was found to apply, the Ninth Circuit pointed to the Rule’s failure to provide for adequate public participation. [tippy title=”246″ header=”off”]Id. at 857.[/tippy] The public received neither notice nor the opportunity for a hearing on the NOI. [tippy title=”247″ header=”off”]Id. at 856.[/tippy] The EPA argued that the NOI was neither a “permit” nor “permit application,” and therefore was not subject to the public hearing and public availability provisions of the CWA. [tippy title=”248″ header=”off”]Id.[/tippy] A NOI is legally distinguishable from a permit application because a NOI is submitted after the general permit has been promulgated by the EPA. [tippy title=”249″ header=”off”]Id. at 853, 857.[/tippy] Assuming arguendo that the NOI should be considered a “permit” or “permit application,” the EPA maintained that the public availability requirements were met through a combination of the public involvement minimum measures, [tippy title=”250″ header=”off”]Id. at 857.[/tippy] the Federal Freedom of Information Act, [tippy title=”251″ header=”off”]5 U.S.C.A. § 552 (West 1989).[/tippy] and state freedom of information acts. [tippy title=”252″ header=”off”]Envtl. Def. Ctr., Inc., 344 F.3d at 857.[/tippy]
The court rejected the EPA’s public participation arguments. [tippy title=”253″ header=”off”]Id.[/tippy] It reasoned that the “technical issues” applicable to permitting should be decided in “‘the most open, accessible forum possible, and at a stage where the [permitting authority] has the greatest flexibility to make appropriate modifications to the permit.”’ [tippy title=”254″ header=”off”]Id. at 856-57 (quoting 44 Fed. Reg. 32,854, 32,885 (June 7, 1979)).[/tippy] This openness was lacking, and as a result, the Rule violated the “clear intent of Congress.” [tippy title=”255″ header=”off”]Id. at 857.[/tippy]
B. Texas Independent Producers and Royalty Owners Association v. EPA
The Seventh Circuit adopted a different view of the GCP in Texas Independent Producers and Royalty Owners Association v. EPA. [tippy title=”256″ header=”off”]410 F.3d 964, 967 (7th Cir. 2005).[/tippy] The Natural Resources Defense Council (NRDC) filed a petition to review the CGP. [tippy title=”257″ header=”off”]On July 1, 2003, the EPA issued its Final NPDES General Permit for Storm Water Discharges from Construction Activities (CGP). 68 Fed. Reg. 39,087 (July 1, 2003); see also Tex. Indep. Producers, 410 F.3d at 967.[/tippy] The court found that the NRDC did not have standing to present a substantive challenge to the merits of the CGP, [tippy title=”258″ header=”off”]Tex. Indep. Producers, 410 F.3d at 967.[/tippy] but that it did have standing to present certain procedural challenges based on the failure to provide a public hearing on the NOI and SWPPP and the failure to mandate their public availability. [tippy title=”259″ header=”off”]Id. at 977.[/tippy] As might be expected, the procedural challenges were based on Sections 402(j) and 402(a)(1). [tippy title=”260″ header=”off”]Id., 33 U.S.C. §§ 1342(j), 1342(a)(1) (2000). The NRDC also claimed that the CGP violated the CWA for failing to ensure that the discharge meets the water quality and technology requirements of the CWA, and that the CGP violated the Endangered Species Act. Tex. Indep. Producers, 410 F.3d at 969-70.[/tippy] The court rejected the NRDC’s procedural claims, which relied on a functional equivalent theory. [tippy title=”261″ header=”off”]Id. at 978 n.13.[/tippy]
The Seventh Circuit’s reasoning turns on the application of the Chevron v. Natural Resources Defense Council decision. [tippy title=”262″ header=”off”]Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984).[/tippy] In Chevron, the Supreme Court established a two-step judicial test for reviewing federal agency interpretations:
When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. [tippy title=”263″ header=”off”]Id. at 842-43 (emphasis added).[/tippy]
The Seventh Circuit applied the step-two deference of Chevron. [tippy title=”264″ header=”off”]Tex. Indep. Producers, 410 F.3d at 978.[/tippy] The Seventh Circuit reasoned that Congress had not spoken to the issue and, if it had, its directions were at best ambiguous. [tippy title=”265″ header=”off”]Id.[/tippy] This view that the Rule does not present a step-one analysis under Chevron is persuasive. Congress did not define what constitutes a “permit” or “permit application,” nor did it provide any explanation of the manner in which NPDES permits and permit applications are to be made publicly available. [tippy title=”266″ header=”off”]Id.[/tippy] Thus, the challenge to properly applying Chevron was whether the determination that NOIs and SWPPPs were not “permits” or “permit applications” was a permissible statutory construction by the EPA.
The court found that arguments advanced by the EPA were a permissible construction of the CWA under Chevron. [tippy title=”267″ header=”off”]Id.[/tippy] The EPA argued that a fundamental distinction exists between a “general permit,” which is proposed through the notice and comment process, and a “permit application,” which is considered by the public at a hearing during the application process. [tippy title=”268″ header=”off”]Id.[/tippy] This distinction supports the view that no additional need exists either for public comment or notice with respect to general permits. [tippy title=”269″ header=”off”]Tex. Indep. Producers, 410 F.3d at 978.[/tippy]
The EPA also maintained that requiring the opportunity for an additional public hearing for each NOI and SWPPP was not sound as a matter of policy. [tippy title=”270″ header=”off”]Id.[/tippy] It “would eviscerate the administrative efficiency inherent in the general permitting concept.” [tippy title=”271″ header=”off”]Id.[/tippy] Such a requirement would place too heavy a burden on the administration of the system of general permitting, and thus conflict with Congress’ intent to allow the use of general permits. [tippy title=”272″ header=”off”]Id.[/tippy] As recognized in NRDC v. Costle, [tippy title=”273″ header=”off”]Nat’l Res. Def. Council, Inc. v. Costle, 568 F.2d 1369 (D.C. Cir. 1977).[/tippy] the CWA allows the use of general permits: “Area-wide regulation is one well-established means of coping with administrative exigency.” [tippy title=”274″ header=”off”]Id. at 1381.[/tippy]
The Seventh Circuit was aware of the Ninth Circuit’s “functional equivalent” theory and specifically rejected it:
The Ninth Circuit’s majority . . . found under step one of Chevron that Congress clearly intended NOIs to be subject to the public availability and public hearing requirements because NOIs are the functional equivalent of a permit application. . . . [T]he statutory language [CWA Sections 402(j) and 402(a)(1)] at issue addresses only “permit applications” and fails to include any mention of NOIs, SWPPPs, or other so-called “functional equivalents.” [tippy title=”275″ header=”off”]Tex. Indep. Producers, 410 F.3d at 978-79 n.13 (internal citations omitted).[/tippy]
In addition to rejecting it, the Seventh Circuit recognized that its opinion creates a split between the federal circuits. [tippy title=”276″ header=”off”]Id.[/tippy]
C. The Constructional Principle “In Pari Materia”
Certain principles of statutory construction undermine the raison d’etre for the functional permit theory. Section 402(p) authorizes the use of “system or jurisdiction-wide” permits for municipal discharges. [tippy title=”277″ header=”off”]Clean Water Act § 402(p)(3)(B)(i), 33 U.S.C. § 1342(p)(3)(B)(i) (2000).[/tippy] While this section does not expressly authorize them for industrial storm water discharges, Section 402(p)(6) does direct the EPA to establish a “comprehensive program” to regulate storm water discharges that may include “performance standards, guidelines, guidance, and management practices and treatment requirements . . . .” [tippy title=”278″ header=”off”]Clean Water Act § 402(p)(6), 33 U.S.C. § 1342(p)(6) (2000).[/tippy] The EPA’s general permit program of construction storm water regulation arguably fits within this congressional direction. Similarly, given the administrative and technical complexity of storm water regulation, Section 402(p)(6) also provides the justification for applying step two of Chevron. [tippy title=”279″ header=”off”]Clean Water Act § 402(p)(6), 33 U.S.C. § 1342(p)(6) (2000); see supra note 263 and accompanying text.[/tippy]
The industrial storm water provisions of Section 402(p) incorporate the requirements of Section 301, which contains two regulatory strategies: WQSs and technology-based standards, which in the case of storm water regulation is MEP achieved through BMPs. [tippy title=”280″ header=”off”]Clean Water Act §§ 301(b), 402(p)(3)(B)(iii), 33 U.S.C. §§ 1311(b), 1342(p)(3)(B)(iii) (2000).[/tippy] The Ninth Circuit did not consider the role played by WQSs as a regulatory oversight tool to ensure that water quality is in fact protected. [tippy title=”281″ header=”off”]This failure by the Ninth Circuit is curious in light of Defenders of Wildlife v. Browner, 191 F.3d 1159, 1164 (9th Cir. 1999) (reasoning that only industrial dischargers were “expressly” required by § 1342(p)(3)(A) to comply with WQS).[/tippy] Section 301(b)(1)(C) states:
not later than July 1, 1977, any more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedule of compliance, established pursuant to any State law or regulations, (under authority preserved by Section 510 [of this title]) or any other Federal law or regulation, or required to implement any applicable water quality standard established pursuant to this Act. [tippy title=”282″ header=”off”]Clean Water Act § 301(b)(1)(C), 33 U.S.C. § 1311(b)(1)(C) (2000); see also Clean Water Act § 303(e)(3)(A), 33 U.S.C. § 1313(e)(3)(A) (2000).[/tippy]
A NPDES permit cannot legally authorize a discharge in violation of WQSs regardless of the perceived substantive role played by the SWPPP under the Rule. [tippy title=”283″ header=”off”]Clean Water Act § 301(a), 33 U.S.C. § 1311(a) (2000).[/tippy] In short, the CWA requires that limitations necessary to meet WQSs be implemented. [tippy title=”284″ header=”off”]Clean Water Act § 301(b)(1)(C), 33 U.S.C. § 1311(b)(1)(C) (2000).[/tippy] Equally important, the CGP also recognizes this obligation. [tippy title=”285″ header=”off”]See NPDES General Permit supra note 15.[/tippy]
The storm water provisions added by Congress in 1987 require the EPA to issue storm water regulations to “protect water quality.” [tippy title=”286″ header=”off”]Clean Water Act § 402(p)(6), 33 U.S.C. § 1342(p)(6) (2000).[/tippy] In doing so, Congress created a moratorium on storm water discharges occurring prior to October 1, 1994. [tippy title=”287″ header=”off”]Clean Water Act § 402(p)(1), 33 U.S.C. § 1342(p)(1) (2000).[/tippy] But the moratorium does not apply to a discharge that “contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States.” [tippy title=”288″ header=”off”]Clean Water Act § 402(p)(2)(E), 33 U.S.C. § 1342(p)(2)(E) (2000).[/tippy]
The overview to the Rule itself recognizes the obligation to protect WQSs. It states: “[a]bsent evidence to the contrary, EPA presumes that a small MS4 program that implements the six minimum measures in today’s rule does not require more stringent limitations to meet water quality standards [WQSs].” [tippy title=”289″ header=”off”]EPA, Regulations for the Revision of the Water Pollution Control Program, 64 Fed. Reg. 68,722, 68,753 (Dec. 8, 1999).[/tippy]
The language creates a presumption that additional limitations are not required. But it is a rebuttable presumption because the presumption applies “[a]bsent evidence to the contrary.” [tippy title=”290″ header=”off”]Id.[/tippy] Consequently, evidence may be submitted by regulators or other interested parties to demonstrate that the “minimum measures” do not in fact meet WQSs. [tippy title=”291″ header=”off”]Id.[/tippy] Thus, if after implementing the minimum control measures identified by the Rule, evidence exists that the discharger is nonetheless causing or contributing to non-attainment of WQSs, the builder may be required to take additional substantive steps by expanding or better tailoring its BMPs. [tippy title=”292″ header=”off”]Id.; see also 40 C.F.R. § 122.34(b) (2004).[/tippy] In short, the substantive effect of the Rule is not as complete as the Ninth Circuit reasons in Environmental Defense Center, Inc. v. EPA. [tippy title=”293″ header=”off”]344 F.3d 832 (9th Cir. 2003).[/tippy]
In addition, the court failed to consider the existence or possible application of the federal antidegradation policy. The constructional principle in pari materia (part of the same material) counsels that legislation should be interpreted by the courts so that the respective parts of the law being construed are internally consistent. [tippy title=”294″ header=”off”]See e.g., Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711(1996).[/tippy] In the context of storm water regulation, its application is based on the normative view that Congress was cognizant of the antidegradation or anti-backsliding provisions of the CWA [tippy title=”295″ header=”off”]Clean Water Act § 402(o)(1), 33 U.S.C. § 1342(o)(1) (2000).[/tippy] when it added Section 402(p) in 1987.
As part of the WQS program, a state is required to have an antidegradation policy that also limits the perceived determinative effect of the Rule. [tippy title=”296″ header=”off”]40 C.F.R. § 131.12 (2004).[/tippy] The federal antidegradation policy provides:
(a) The State shall develop and adopt a statewide antidegradation policy and identify the methods for implementing such policy pursuant to this subpart. The antidegradation policy and implementation methods shall, at a minimum, be consistent with the following:
(1) Existing instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.
(2) Where the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained and protected . . . . Further, the State shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and reasonable best management practices for nonpoint source control.
(3) Where high quality waters constitute an outstanding National resource, such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected. [tippy title=”297″ header=”off”]Id.[/tippy]
The implementation of this policy must ensure that existing beneficial uses and “high quality waters” are protected. [tippy title=”298″ header=”off”]Id.[/tippy] Thus, the antidegradation policy provides an additional regulatory instrument to assure regulatory oversight.
In California, the antidegradation policy is formally known as the Statement of Policy with Respect to Maintaining High Quality of Waters in California. [tippy title=”299″ header=”off”]California State Water Resources Control Board, Resolution No. 68-16: Statement of Policy with Respect to Maintaining High Quality of Waters in California, available at http://www.waterboards.ca.gov/plnspols/wqplans/res68-16.pdf (last visited Feb. 19, 2006).[/tippy] It restricts discharges that degrade surface and ground waters. [tippy title=”300″ header=”off”]Id.[/tippy] Under the policy, any actions that can adversely affect water quality in any surface and ground waters must “be consistent with the maximum benefit to the people of the State, will not unreasonably affect present and anticipated beneficial use of such water and will not result in water quality less than that prescribed in [water quality basin plans].” [tippy title=”301″ header=”off”]Id.[/tippy] This policy is consistent with federal requirements. [tippy title=”302″ header=”off”]See id.[/tippy]
The congressional grant of authority to the EPA to create a general permit system reasonably includes the authority to implement it without the imposition of a NOI public hearing obligation. [tippy title=”303″ header=”off”]See Envtl. Def. Ctr., Inc., v. EPA, 344 F.3d 832, 882 (9th Cir. 2003) (Tallman, J., dissenting).[/tippy] This point was made by the dissent in Environmental Defense Center:
The majority’s position fails to give deference to [the] EPA and imposes the majority’s own wishes instead. EPA would have been justified in creating a system entirely reliant on general or area permits. Its imposition of NOIs is an indulgence to certain policy prerogatives, namely public involvement and the collection of additional information. But the power to create a general permit system necessarily implies the power to require subordinate steps for NOIs that do not quite reach the level of inquiry associated with actual permits. [tippy title=”304″ header=”off”]Id.[/tippy]
Finally, public policy should be considered. To the extent that the filing of a NOI or SWPPP triggers the need for a public hearing, this requirement eviscerates the administrative efficiency inherent in the general permitting concept that has been authorized by Congress. Providing a public hearing for each NOI or SWPPP would undoubtedly compromise important aspects of administrative efficiency.
D. Administrative Compliance with the “Functional” Permit Theory
No evidence exists that Environmental Defense Center, Inc. v. EPA [tippy title=”305″ header=”off”]344 F.3d 832 (9th Cir. 2003).[/tippy] has an appreciable effect on the actual administration of construction storm water permitting in California. This situation is somewhat reminiscent of Andrew Jackson’s comment on the Supreme Court’s decision in Worcester v. Georgia, [tippy title=”306″ header=”off”]31 U.S. 515 (1832).[/tippy] which held Georgia’s anti-Cherokee statutes unconstitutional. [tippy title=”307″ header=”off”]Id. at 595.[/tippy] He remarked: “‘John Marshall has made his decision, now let him enforce it.”’ [tippy title=”308″ header=”off”]Leonard Baker, John Marshall: A Life in Law 745 (1974) (internal citations omitted).[/tippy]
In response to the Environmental Defense Center, Inc. v. EPA, [tippy title=”309″ header=”off”]344 F.3d 832 (9th Cir. 2003).[/tippy] the EPA “recommends” the following:
[P]ermitting authorities include permit language explaining the process for requesting a public hearing on an NOI, the standard by which such requests will be judged, the procedures for conducting public hearing requests that are granted, and the procedures for permitting authority consideration of the information submitted at the hearing in determining whether to grant authorization to discharge to the submitter of the NOI. If a public hearing is requested, the permitting authority should consider both whether to grant a hearing and the range of options for the conduct of the hearing, including, for example, a single public hearing for consideration of multiple Phase II MS4 permittee NOIs. [tippy title=”310″ header=”off”]Hanlon, Memorandum, supra note 32.[/tippy]
The EPA does not recommend any specific administrative action. Little disagreement exists with the recommendation that the process for requesting the public hearing should be explained. [tippy title=”311″ header=”off”]See N.C. Div. of Water Quality, NPDES Program FAQs, http://h2o.enr.state.nc.us/NPDES/faqs.html (last visited Feb. 19, 2006) (explaining procedures for requesting a public hearing); Utah Dep’t of Envtl. Quality, Environmental Permit Brochure, http://www.deq.utah.gov/references/docs_rules/Permit.htm#wq (last visited Feb. 19, 2006) (explaining the same).[/tippy] But the critical issue is specifying the process to accommodate the requirement. Unfortunately, the EPA’s recommendation is at such a level of generality that it falls short in being useful to those who have to implement the process.
Another aspect of the EPA’s response is worth noting. The recommendation that “the permitting authority should consider . . . whether to grant a hearing” [tippy title=”312″ header=”off”]Hanlon, Memorandum, supra note 32.[/tippy] seems at odds with the application of the functional permit theory. The EPA appears to be signaling its continuing support for the Rule, except in the Ninth Circuit where it has been judicially invalidated. [tippy title=”313″ header=”off”]See id.[/tippy] In short, this guidance to regulators may also be an invitation to the Supreme Court to resolve the issue.
Several administrative strategies may be suggested to respond to the application of the functional permit theory. The public hearing requirement might be satisfied by placing the NOI and SWPPP on the “uncontested items calendar” agenda of the permit-issuing agency. [tippy title=”314″ header=”off”]See Cal. Code Regs. tit. 23, § 647.2(f) (2005).[/tippy] This timesaving approach to administratively managing noncontroversial agenda items would satisfy the hearing requirement. The public hearing requirement might be easily accommodated because items on the consent calendar, more formally known as the uncontested items calendar, may be considered and voted on by one motion. [tippy title=”315″ header=”off”]See id.[/tippy]
A concern with using the “consent calendar” as the administrative mechanism to satisfy the public hearing requirement is the ease with which any item can be removed from it. The agenda notice for action items coming before the San Diego Regional Water Board, for example, states:
CONSENT CALENDAR: The agenda contains items listed on a consent calendar which is for matters considered routine or otherwise not requiring further deliberation. A committee or the Board will take action as recommended by one motion. There will be no individual discussion on such items prior to the vote unless an item is removed for discussion. If a member of the public wishes to talk about a consent calendar item, please notify the Chair before the calendar is called. Persons who wish to be heard on an item are encouraged to speak before the assigned committee. [tippy title=”316″ header=”off”]San Diego County Water Authority, Notice to the Public, available at http://www.sdcwa.org/board/notice.phtml (last visited Feb. 19, 2006).[/tippy]
Because any person can request a hearing, the possibility exists that NOIs may be routinely removed from the consent calendar by opponents of a particular project. [tippy title=”317″ header=”off”]See id.[/tippy] Easy removal would slow the permitting process since a hearing would be required. It would give advocates of slow-growth or no-growth a convenient, as well as powerful, mechanism to challenge construction projects.
Another concern is the management of the consent calendar. Although placing the matter for expedited consideration may avoid a lengthy formal or informal hearing, if the NOI is removed, items must be complete before the permit issuing agency takes action at the public hearing. [tippy title=”318″ header=”off”]See generally id.[/tippy] This requires the administrative staff to review and to recommend action on every SWPPP for expedited consideration. Using the consent calendar may assist in meeting the hearing requirement, but it is no panacea.
A second approach might be to rely on the citizen-suit notice provisions as the mechanism to trigger the public hearing request. [tippy title=”319″ header=”off”]The availability of citizen suit enforcement actions was rejected as a substitute for the EPA’s enforcement responsibility. See e.g., Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 855 n.32 (9th Cir. 2003). The argument being made here is that the citizen suit provision might be used as the basis for administering the request for a public hearing.[/tippy] Like most federal environmental statutes, the CWA grants citizens the right to file suit in federal court when there is an alleged failure to perform any act or duty under the CWA that is not discretionary. [tippy title=”320″ header=”off”]Clean Water Act § 505(a), 33 U.S.C. § 1365(a) (2000).[/tippy] Before filing suit, the CWA requires plaintiffs to provide 60 days’ notice to the alleged violator, which in this case would be the permitting agency. [tippy title=”321″ header=”off”]Clean Water Act § 505(b)(1)(A), 33 U.S.C. § 1365(b)(1)(A) (2000).[/tippy] The notice requirement exists to allow the agency to take corrective action without the necessity of litigation.
This citizen-suit notice might be used by regulators as the basis for providing the mechanism to request the public hearing in particular cases. Upon receiving notice, the permitting agency could consider the request and grant the hearing as appropriate. But this strategy suffers the same shortcoming as using the consent calendar. The 60 days’ notice could easily turn into a pro forma request by objectors to any and all construction projects.
A more fundamental concern exists. Using the citizen-suit notice provisions to request the public hearing might be seen as the systematic creation of a cumbersome procedural barrier, and one that is inconsistent with the core principle of the functional equivalent theory. In California, the Porter-Cologne law provides that the Regional Water Board shall prescribe waste discharge requirements “after any necessary hearing.” [tippy title=”322″ header=”off”]Cal. Water Code Ann. § 13263(a) (West 2005).[/tippy] A hearing is necessary according to the application of the functional equivalent theory. [tippy title=”323″ header=”off”]See Clean Water Act § 402(a)(1), 33 U.S.C. § 1342(a)(1) (2000) (providing that “the Administrator [of the EPA] may, after opportunity for public hearing, issue a permit”); see also discussion infra Part VIII. The “Functional” Permit Theory: Divergent Views.[/tippy] Thus, a hearing should be routinely available without the necessity of threatening litigation.
In the end, providing a hearing on every storm water NOI and SWPPP has the potential to bring the construction storm water permit issuing process to a grinding halt. Perhaps a more sensible solution exists by focusing on the substantive nature of the SWPPP. To the extent that the SWPPP is not treated as substantively determinative, the claim that the functional equivalent theory should apply is arguably unavailing.
MS4 storm water permits do not treat the Storm Water Management Plan (SWMP), which is functionally similar to the SWPPP, as satisfying the statutory requirement of MEP. [tippy title=”324″ header=”off”]But see 33 U.S.C. § 1342(p)(3)(B)(iii) (2000) (“Permits for discharges from municipal storm sewers… (iii) shall require controls to reduce the discharge of pollutants to the maximum extent practicable….”); California EPA, State Water Resources Control Board, Storm Water Program: Phase II Small MS4 General Permit Questions and Answer Document, http://www.swrcb.ca.gov/stormwtr/smallms4faq.html (last visited Feb. 24, 2006) (“[P]ermits for [MS4] must require municipalities to reduce pollutants in their storm water discharges to the MEP…. MS4 permits ‘shall require controls to reduce the discharges of pollutants to the maximum extent practicable, including management practices, control techniques and systems, design and engineering methods.”’); California EPA, State Water Resources Control Board, Stormwater Program: Municipal Program, http://www.swrcb.ca.gov/stormwtr/municipal.html (last visited Feb. 24, 2006) (“The MS4 permits require the discharger to develop and implement a Storm Water Management Plan/Program with the goal of reducing the discharge of pollutants to the maximum extent practicable (MEP). MEP is the performance standard specified in Section 402(p) of the Clean Water Act.”).[/tippy] This policy approach could be incorporated into the construction storm water permitting program. In essence, the minimum measures that are treated as compliance with MEP by the Phase II Rule need to be viewed more flexibly, and less determinatively.
This approach goes to the raison d’etre for applying the functional permit theory. The absence of regulatory oversight was the trigger for the opportunity for a public hearing. [tippy title=”325″ header=”off”]See Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 852 (9th Cir. 2003).[/tippy] In other words, providing the opportunity for a hearing through the functional permit theory is the legal mechanism to assure oversight. The determination of whether a builder has reduced pollutants to the MEP by using various BMPs can only be made by the permit-issuing agency, not by the developer. Otherwise, the system is self-regulatory.
MEP ought to be viewed as a dynamic standard by regulators and developers alike. The standard should be treated as requiring developers to use whatever combination of pollution prevention, source control, and BMPs that are technologically and economically effective. To the extent that regulatory monitoring or on-site inspection reveals that additional or modified BMPs are needed to protect water quality, the ability of regulators to require corrective action by developers exists. In addition to having the authority to require corrective action, regulators have the authority under the CWA to take other enforcement action. [tippy title=”326″ header=”off”]See Clean Water Act § 309, 33 U.S.C. § 1319 (2000).[/tippy]
IX. Conclusion
A compelling case exists that construction activities are a potential source of water quality impairment. Sediment runoff from construction sites, which exceeds natural erosion rates when land is cleared or altered during development, is one of the largest pollutant concerns. [tippy title=”327″ header=”off”]EPA, Storm Water Phase II Final Rule Fact Sheet Series, Small Construction Program Overview (Jan. 2000), available at http://www.undeerc.org/watman/stormwater/factsheets/fact3-0.pdf.[/tippy] But sediment runoff is not the only concern. Regulators are also concerned with a wide array of additional pollutants, such as nutrients used to fertilize landscaping, the application of toxic pesticides, and the generation of trash and other construction debris. [tippy title=”328″ header=”off”]EPA, U.S. v. Wal-Mart Stores, Inc. Fact Sheet, supra note 68, at 3-4.[/tippy] Some best management practices (BMPs) carry special concerns. Standing water in filtration basins, for example, may encourage vector production that may threaten public health. [tippy title=”329″ header=”off”]See Swarna Muthukrishnan, Richard Field & Daniel Sullivan, The Use of Best Management Practices (BMPs) in Urban Watersheds (Sept. 2004), at 2-38, available at http://www.epa.gov/ORD/NRMRL/pubs/600r04184/600r04184chap2.pdf (last visited Feb. 19, 2006).[/tippy] The actual palette of pollutants depends on climatic conditions as well as the particulars at the construction site. The type of pollutant subject to off-site release also varies as the project progresses through its various phases toward completion, and thus is dynamic.
The Clean Water Act (CWA), which is based on Congress’ authority under the Commerce Clause, sets out the requirements that must be satisfied by dischargers to comply with federal law. The jurisdictional prerequisites to regulation and enforcement are the discharge of a pollutant to waters of the United States from a point source (PS). [tippy title=”330″ header=”off”]See, e.g., Clean Water Act § 311(b), 33 U.S.C.S. § 1321(b) (LexisNexis 2002).[/tippy] Thus, the CWA does not apply without these requirements (discharge, pollutant, navigable waters, and PS) being met.
The CWA regulates the pollutants in storm water discharges from construction activities under the permitting system established by National Pollutant Discharge Elimination System (NPDES) program. [tippy title=”331″ header=”off”]See Clean Water Act § 402, 33 U.S.C. § 1342 (2000).[/tippy] Discharges of any pollutant into navigable waters from a point source are unlawful unless the discharge complies with an NPDES permit. [tippy title=”332″ header=”off”]Id.[/tippy] The failure to secure a required permit as well as the noncompliance with the terms of an NPDES permit are both unlawful, and subject the violator to civil and criminal sanctions. [tippy title=”333″ header=”off”]See Clean Water Act § 309, 33 U.S.C. § 1319 (2000).[/tippy]
In 1987, the CWA was amended adding the industrial storm water provisions of Section 402(p). [tippy title=”334″ header=”off”]Clean Water Act of 1987, Pub. L. No. 100-4, 101 Stat. 7 (Feb. 4, 1987).[/tippy] Construction activities, which fall within the industrial category, that disturb one acre or more of land and meet the requirements of the CWA are now regulated. [tippy title=”335″ header=”off”]Extension of National Pollutant Discharge Elimination System (NPDES) Permit Deadline for Storm Water Discharges for Oil and Gas Activity That Disturbs One to Five Acres, 70 Fed. Reg. 11,560 (Mar. 9, 2005), available at http://www.epa.gov/npdes/regulations/sw_oil_gas_final_rule.pdf.[/tippy] Given the large number of construction sites subject to CWA regulation, most developers elect to be regulated by a “general permit” designed to regulate an entire group or category of activities. Although individually issued NPDES permits may be issued to developers, individual NPDES storm water permits are not the norm. Thus, the effective and efficient administration of the “general permit” storm water system is critically important to regulators, the building industry, and the community. It is also significant because construction storm water regulation has been elevated as an enforcement priority by regulators. [tippy title=”336″ header=”off”]EPA, Compliance and Enforcement National Priority: Clean Water Act, Wet Weather, Storm Water (Nov. 2004), http://www.epa.gov/compliance/resources/publications/data/planning/priorities/fy2005prioritycwastorm.pdf.[/tippy]
A developer requests coverage under the general storm water permit by filing a Notice of Intent (NOI). [tippy title=”337″ header=”off”]EPA, EPA’s Electronic Stormwater Notice of Intent (eNOI) Home Page, http://cfpub.epa.gov/npdes/stormwater/enoi.cfm (last visited Feb. 20, 2006).[/tippy] At this time, the implementation of best management practices (BMPs) is considered by regulators to be the most appropriate method of meeting the maximum extent practicable (MEP) standard. [tippy title=”338″ header=”off”]See 40 C.F.R. § 122.34 (2004).[/tippy] A Storm Water Pollution Prevention Plan (SWPPP), which accompanies the NOI, identifies the proposed BMPs to reduce pollutants. [tippy title=”339″ header=”off”]See EPA, Storm Water Pollution Prevention Plans for Construction Activities, http://cfpub.epa.gov/npdes/stormwater/swppp.cfm (last visited Feb. 20, 2006).[/tippy] It also identifies the potential sources of pollution that are expected from the construction site, and contains the assurance that the developer will comply with the terms and conditions of the construction storm water permit. [tippy title=”340″ header=”off”]See id.[/tippy]
The states play an important role in administering the storm water law. Most states are authorized by the EPA to administer the NPDES program, subject to continuing oversight by the EPA. [tippy title=”341″ header=”off”]Clean Water Act § 402(b), 33 U.S.C. § 1342(b) (2000); see also discussion supra Part IV. The Construction Industry and Clean Water Act (CWA) Storm Water Regulation.[/tippy] As a result, the states tend to be at the forefront of administering the storm water program, including enforcement. [tippy title=”342″ header=”off”]See EPA, Authorization Status for EPA’s Stormwater Construction and Industrial Programs, http:// cfpub.epa.gov/npdes/stormwater/authorizationstatus.cfm (last visited Feb. 20, 2006) (providing a table listing which states have been authorized to implement the NPDES storm water program).[/tippy] States also play an important role when acting to protect water quality based on state law considerations independent of the CWA. In such cases, a state may provide more protection than provided by the CWA even though the formal mechanism to providing this additional protection may be incorporated in the federal NPDES permit. [tippy title=”343″ header=”off”]See City of Burbank v. State Water Res. Control Bd., 108 P.3d 862, 870 (2005) (rejecting the argument that state exercising the discretionary authority recognized by the CWA acts pursuant to federal law based on the theory that the CWA incorporates state water policy into federal law).[/tippy]
In California, for example, any person discharging or proposing to discharge waste that could affect the water quality of the waters of the state is subject to regulation. [tippy title=”344″ header=”off”]Cal. Water Code Ann. § 13260(1) (West 2005).[/tippy] This grant of regulatory authority–”could affect the water quality”–is broader than the “discharge to navigable waters” Commerce Clause requirement of the CWA. [tippy title=”345″ header=”off”]See Cal. Water Code Ann. § 13260(a)(1) (West 2005); see also Clean Water Act § 401(a)(1), 33 U.S.C. § 1341(a) (2000).[/tippy] A legal reservoir of independent state constitutional authority exists to provide greater water quality protection than that available under federal law.
The CWA requires the opportunity for a public hearing on a “permit” or “permit application.” [tippy title=”346″ header=”off”]Clean Water Act § 402(a)(1), 33 U.S.C. § 1342(a)(1) (2000) (providing that “the Administrator [of the EPA] may, after opportunity for public hearing, issue a permit….”).[/tippy] But actually providing a public hearing for each construction activity seems at odds with the nature of a general permit system. The federal circuits are divided as to whether this hearing requirement applies to a NOI and accompanying SWPPP. [tippy title=”347″ header=”off”]See Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003), cert. denied, Tex. Cities Coal. on Stormwater v. EPA, 541 U.S. 1085 (2004), accord Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486 (2d Cir. 2005), but see Tex. Indep. Producers and Royalty Owners Ass’n v. EPA, 410 F.3d 964 (7th Cir. 2005) reh’g denied en banc Aug. 26, 2005.[/tippy] The failure of Congress to define “permit” or “permit application” is the starting point to understanding the controversy that led to the functional permit theory. [tippy title=”348″ header=”off”]See discussion supra Part VIII. The “Functional” Permit Theory: Divergent Views.[/tippy] Ultimately, the functional equivalent permit theory must be addressed by Congress or the Supreme Court of the United States.
This article has examined the divergent views on this theory. In Environmental Defense Center, Inc. v. EPA, [tippy title=”349″ header=”off”]344 F.3d 832 (9th Cir. 2003), cert. denied, Tex. Cities Coal. on Stormwater v. EPA, 541 U.S. 1085 (2004).[/tippy] the Ninth Circuit considered the NOI and accompanying SWPPP the functional equivalent to a “permit” or “permit application.” [tippy title=”350″ header=”off”]Id. at 858.[/tippy] The Phase II Rule did not provide for regulatory oversight, which led the court to conclude that the Rule constituted an impermissible self-regulatory regime. [tippy title=”351″ header=”off”]Id. at 852.[/tippy] In other words, the functional permit theory became the legal mechanism to assure regulatory oversight by providing the opportunity for a public hearing. The court applied the Supreme Court the first step of the two-part test set forth in Chevron v. Natural Resources Defense Council and found that this lack of oversight contravened the express requirements of the CWA. [tippy title=”352″ header=”off”]Id.[/tippy]
In 2005, the Seventh Circuit decided Texas Independent Producers and Royalty Owners Association v. EPA. [tippy title=”353″ header=”off”]410 F.3d 964 (7th Cir. 2005), reh’g denied en banc Aug. 26, 2005.[/tippy] It rejected the functional permit theory as it applies to storm water regulation. [tippy title=”354″ header=”off”]Id. at 978.[/tippy] Because Congress had not defined the critical terms “permit” or “permit application,” the court reasoned that the critical issue was the application of step two of Chevron: whether the EPA’s construction of the CWA requirements was “permissible.” [tippy title=”355″ header=”off”]Id.[/tippy]
Several considerations led the court to conclude that the EPA’s position was permissible and should be sustained. First, the opportunity for a public hearing was granted when the permit was promulgated by the EPA for notice and comment in the Federal Register. [tippy title=”356″ header=”off”]Id.[/tippy] The public had the opportunity at this time to weigh in on the proposed permit when it was promulgated. [tippy title=”357″ header=”off”]See id.[/tippy] Furthermore, Congress did not specify that a NOI or SWPPP should be considered a “permit” or “permit application.” [tippy title=”358″ header=”off”]Id.[/tippy] Rather, it assigned the EPA the task of developing a comprehensive storm water program. [tippy title=”359″ header=”off”]Tex. Indep. Producers and Royalty Owners Ass’n v. EPA, 410 F.3d 964, 968 (7th Cir. 2005), reh’g denied en banc Aug. 26, 2005.[/tippy] Second, granting a public hearing on each NOI and accompanying SWPPP was simply unworkable as an administrative matter given the large number of construction activities subject to possible regulation. [tippy title=”360″ header=”off”]See id. at 978.[/tippy] Finally, granting a public hearing on each NOI and SWPPP would undermine the general permitting scheme approved by Congress. [tippy title=”361″ header=”off”]Id.[/tippy] Thus, the functional permit theory appears not to further Congress’ intent but to be inconsistent with it.
When pared to the core, the functional permit theory is based on the perceived substantive importance of the SWPPP. I have argued that its substantive importance is minimized, and thus the raison d’etre for its existence, when additional factors involving regulatory oversight and enforcement are taken into account. The role of Water Quality Standards (WQSs) and the federal antidegradation policy were not considered in considering the appropriateness of the theory. When they are taken into account, the Rule proposed by the EPA is significantly less “self-regulatory” than envisioned by the Ninth Circuit. [tippy title=”362″ header=”off”]See id.[/tippy] I have also argued that the Seventh Circuit’s analysis is more persuasive based on the application of Chevron. The Rule is a “permissible” construction by the EPA furthering the intent of Congress to promote the use of general permits. [tippy title=”363″ header=”off”]Id.[/tippy]
The division between the federal circuit courts on the role of the functional equivalent theory leaves developers, regulators, and the community with no clear answer to the question: What does the CWA require? Pending resolution of the answer either by Congress or the Supreme Court, I have suggested several solutions for coping with the requirement to provide the opportunity for a public hearing in those federal circuits applying the theory.
Perhaps the most promising approach is for regulators to treat the minimum BMP measures more flexibly, and less determinatively in meeting the statutory requirement of “maximum extent practicable” (MEP). [tippy title=”364″ header=”off”]See 40 C.F.R. § 122.34 (2004).[/tippy] In doing so, this would require developers to recognize that implementing the BMP measures identified in the applicable construction SWPPP is no assurance that regulators will treat the developer in compliance with the CWA. This approach inevitably results in some uncertainty with respect to compliance. Thus, the regulatory challenge that lies ahead to reduce uncertainty is a scientific one: the formulation of a more certain regulatory standard for storm water discharges.