AMSA Legal Alert (Leg02-5)

AMSA is tracking several environmental group petitions seeking numeric effluent limitations in lieu of best management practices (BMPs) in municipal storm water permits to ensure compliance with state water quality standards (WQS). These efforts continue even after the Defenders of Wildlife v. Browner case - in which AMSA was amicus curiae - held that municipal storm water discharges do not have to comply strictly with WQS. See Defenders, 191 F.3d 1159, 1164 (9th Cir. 1999). Defenders also held that the Clean Water Act (CWA) contains a separate standard for municipal storm water discharges, requiring controls to "reduce the discharge of pollutants to the maximum extent practicable (MEP), including management practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator or the State determines appropriate for the control of such pollutants." Id. at 1165; CWA § 402(p)(3)(B)(iii).

On February 20, 2002, the U.S. Environmental Protection Agency (EPA) Environmental Appeals Board (EAB) issued an Order in a case in which Friends of the Earth and Defenders of Wildlife (petitioners) requested review of the storm water permit EPA Region III (Region) had issued to the District of Columbia (District). See In re: Government of the District of Columbia Municipal Separate Storm Sewer System, NPDES Appeal Nos. 00-14 and 01-09 (Order). The petitioners raised several objections, including arguments that the permit's use of BMPs would not ensure compliance with WQS, and also, as a separate matter, that the permit did not comply with the MEP standard.

The Order remands the District's permit to the Region for further consideration. It also contains some troubling statements suggesting that storm water discharge controls should ensure WQS compliance. The Order avoids the Defenders precedent by noting that the Region did not rely on Defenders to issue the District's permit. The Order's discussion of the MEP approach is more consistent with Defenders, however, finding that the "key question" under CWA § 402(p)(3)(B) is what is "practicable."

This Legal Alert summarizes the Order on key AMSA issues, and outlines AMSA's plan to follow the case on remand. The Order is available on AMSA's Member Pipeline at http://www.amsa-cleanwater.org/private/littrack/littrack.cfm.

Background
The Region issued the District's NPDES permit in April 2000. The permit authorized storm water discharges from the District's municipal separate storm sewer system (MS4) and required the City to use various BMPs to control pollutant discharges toward attaining the District's WQS (although a single numeric limit, for oil and grease, was imposed on the outfalls in one small watershed). In August 2000, the petitioners requested that the EAB review the permit. They objected to several elements of the permit, including its incorporation of BMPs and failure to comply with the MEP standard. In December 2000, the EAB heard oral arguments in the case from the Region and the petitioners. The EAB then issued the Order discussed in this Alert, remanding the permit to the Region for further consideration.

Ensuring Compliance with WQS in Storm Water Permits
The District's permit contained one numeric effluent limitation and a variety of BMPs to control pollutants from the MS4. The petitioners argued that the Region: 1) should have established numeric limits for all of the outfalls instead of using BMPs; 2) failed to show that numeric limits were infeasible; 3) should have set numeric limits equal to the numeric WQS applicable to the receiving waters; 4) should have at a minimum set narrative limits; and 5) failed to determine that the selected BMPs would ensure protection of the District's WQS. See Order at 16.

The EAB's Order, however, supported the Region's use of BMPs. The Order acknowledged that "[t]he notion that effluent limits may be expressed as either numeric limits or as some other restriction that limits the discharge of pollutants, such as BMPs, has been stated in EPA guidance and . . . endorsed by this Board." Id. at 18-19. The EAB said it did not need to revisit its prior determinations "that, as a general proposition, BMPs are a form of effluent limit that may in appropriate circumstances be used to satisfy the requirements of [40 C.F.R.] section 122.44(d)," requiring effluent limitations to achieve WQS. Notably, one of the "prior determinations" the EAB referred to was its 1988 analysis of five Arizona storm water permits, which on appeal became the Defenders case. See id. at 19.

The EAB further noted that numeric limitations were not feasible when the permit was issued due to insufficient information about "the magnitude, variation, and frequency of the flow rate of both the river and storm discharges." Id. at 20. The EAB rejected the petitioners' "generalized assertion that the Region had an affirmative duty to set numeric limits." It also rejected the argument that numeric limits could have been derived because the petitioners did not raise this issue during public comment. The EAB further found that narrative limits are not required, but indicated it would not discourage their use in any reissued permit for the District. Id. at 22, 25.

In response to the petitioners' fifth argument, however, the EAB noted that at oral argument the Region asserted the selected BMPs were "reasonably capable of achieving" WQS. Id. at 25. The EAB then pointed to 40 CFR § 122.44(d), which requires permits to contain effluent limitations as necessary to ensure compliance with WQS. These regulations are based on CWA § 402(a)(1), which states that all permits must comply with CWA § 301(b)(1)(C), which requires achievement of "any more stringent limitation . . . necessary to meet water quality standards." The Region clarified that the "reasonably capable" argument was merely paraphrasing its' finding that more stringent limits were not needed to achieve WQS. However, the EAB found this argument not "entirely comparable to the concept of ensuring compliance," and that the record lacked support for the Region's conclusions that the permit would achieve WQS. Id. at 26-27. Accordingly, the EAB remanded the permit to the Region to develop support for its conclusion that the permit "will 'ensure'" compliance with WQS. Id. at 28.

This remand to the Region to show the permit ensures compliance with WQS directly contravenes the Ninth Circuit's Defenders decision, which held that municipal storm water discharges are not required to comply with WQS. The EAB's Order carefully sidesteps Defenders by noting that at oral argument the Region stated it was not "relying on the Ninth Circuit's conclusion that EPA has the authority to require less than strict compliance with state water quality standards" and that it intended the District's permit to satisfy WQS. Id. at footnotes 9, 19.

Thus, while the Order does not question the general precedent that storm water permits need not comply strictly with WQS, it still directs the Region on remand to show that the permit will ensure compliance with WQS. It is possible that on remand, the Region can establish that its oral argument overstated the relevant legal standard, and that it was not implying that the District's permit had to ensure WQS compliance by law.

MEP Standard for Municipal Storm Water
The petitioners also argued that the Region did not properly apply CWA ' 402(p)(3)(B)(iii)'s provision to reduce the discharge of pollutants to the maximum extent practicable [MEP]." The petitioners specifically asserted that: 1) the permit's BMPs would not reduce the discharges of a variety of pollutants; 2) the requirement to evaluate and upgrade BMPs over time showed they were not meeting the MEP standard, constituting an illegal delayed implementation scheme; and 3) the permit introduced an unauthorized cost-benefit and affordability analysis for BMPs. Id. at 33-34.

In its Order, the EAB stayed true to Defenders' and its own prior endorsement of the MEP standard for municipal storm water discharges. The EAB found that the petitioners' "emphasis on the amount of reduction achieved for the various pollutants is misplaced" and that the "key question under section 402(p)(3)(B) . . . is what is practicable." Id. at 36. The EAB was "loath to second guess the Region's technical judgment in this regard." Id. at 36-37. The EAB also noted that allowing evaluation and upgrade of BMPs over time "does not imply that the Region has failed to properly assess MEP" at permit issuance. Id. at 38. Evaluation and upgrade of BMPs also does "not authorize a deferred implementation of the BMPs that were determined to be MEP" at permit issuance. Id. Finally, the EAB found that cost benefit analysis of BMPs is relevant for future permit amendments and supported the Region's statement that this type of information is useful in determining the degree of practicability of BMPs. Id. at 39.

AMSA's Next Steps
Recognizing the importance of this issue, AMSA's Board of Directors authorized the Association to file an amicus brief in this case with other interested water and storm water associations, to support Defenders and to present publicly owned treatment works' (POTW) views on the CWA standards for storm water management. Under EAB's rules, however, interested parties can file an amicus brief only after the EAB grants review of an appeal. The EAB's February Order denies review and remands the permit to the Region for additional consideration. Accordingly, the opportunity to file an amicus brief has not yet arrived. Furthermore, the Order is not "final agency action" that can be appealed to the District of Columbia Circuit Court at this time.

Final EAB action will only occur after the Region evaluates the permit on remand and if the case is then reappealed to the EAB. If there is no further appeal after the remand, the opportunity for AMSA's participation as an amicus may never arise.

AMSA and the other water associations tracking this case will be evaluating next steps to prevent the setting of unfavorable precedent for storm water management, and to protect the integrity of the Defenders decision. We will keep the membership apprised of further developments in this regard.

If you have any questions regarding this case or AMSA's legal activities, please feel free to contact AMSA's General Counsel Alexandra Dunn at 202/533-1803 or adunn@amsa-cleanwater.org.