To:
Members, Affiliates, & Legal Affairs Committee
From:
National Office
Date:
September 22, 1999
Subject:
Defenders of Wildlife v Browner (98-71080) — AMSA Counsel Wins Significant Victory for Municipal Stormwater Programs
Reference:
Legal Alert 99-5
In a significant victory for municipalities, the Ninth Circuit Court of Appeals ruled on September 15, 1999 that municipal stormwater discharges are not required to meet numeric water quality standards. The court rejected the positions taken by both the Petitioners (the Sierra Club and the Defenders of Wildlife) and the Respondents (U.S. Environmental Protection Agency) and adopted instead the arguments put forth by the Intervenors (municipal permittees) and the AMSA-led amici curiae. AMSA participated in this lawsuit in order to bolster the argument of local governments that numeric limits were never intended by Congress to be included in municipal stormwater permits.
For the past ten years, EPA has taken the position that municipal stormwater discharges must comply both with Section 402(p) of the Clean Water Act, which requires that cities reduce stormwater to the “maximum extent practicable”, and with Section 301(b), which requires strict compliance with state water quality standards, without regard to feasibility or cost. The court ruled that only Section 402(p) applies and that EPA's interpretation was contrary to the plain language and legislative history of the statute. The court relied on the points in the amicus and intervenors' briefs to make its determination. The court's opinion states that “ we agree with the intervenors and amici: . . .the Water Quality Act [of 1987] unambiguously demonstrates that Congress did not require municipal storm sewer discharges to comply strictly with [water quality standards].” While EPA has the discretion to include numeric limits in municipal permits, that discretion is now constrained by the limits of “practicability”, which embraces the concepts of technical and economic feasibility. A copy of the decision is attached to this Legal Alert.
The lawsuit was based on the issuance of five municipal stormwater permits by EPA Region IX in February 1997. The Petitioners appealed the issuance of all five permits on the grounds that the Clean Water Act requires the inclusion of numeric effluent limitations and whole effluent toxicity limitations. Earlier this year, AMSA and other municipal organizations filed an amicus brief arguing that the Clean Water Act clearly states that municipal stormwater discharges are not required to meet water quality standards. As a result of the court's September 15, 1999 decision, the original NPDES stormwater permits, which do not contain numeric limits, will be issued.
Attachment:
- Decision in Defenders of Wildlife v Browner (98-71080). (Please contact Greg Schaner, AMSA's Manager of Government Affairs, at 202/833-2672 or gschaner@amsa-cleanwater.org, for a copy of this document.)