United States: Scrutiny Over Stormwater Management: Recent Supreme Court And District Court Cases

Urban and suburban development result in two important trends for stormwater: first, an increase in stormwater quantity as the original topography and vegetative cover are altered and impervious surfaces and channelized drainages are constructed; and second, a decrease in the quality of stormwater as flows traverse parking lots, roadways, and fertilized areas. Two recent court decisions address some of the limits of stormwater management under the Clean Water Act. The first case, from the U.S. Supreme Court, discusses a flood control district's liability for polluted water flowing through channelized portions of two rivers in Southern California. Here, the Supreme Court applied settled law about what constitutes a "discharge" from a water body. The second case, from a district court in Virginia, is perhaps more interesting because it is the first federal court opinion striking down the Environmental Protection Agency's (EPA) attempt to regulate the flow of stormwater in order to regulate a pollutant contained within that stormwater.

These cases are two among a number of attempts by environmental advocacy groups to expand the reach of the Clean Water Act by expanding the points of federal jurisdiction allowing regulation. Indeed, two other cases dealing with stormwater flows associated with timber operations in the Pacific Northwest are presently before the Supreme Court: Decker v. Northwest Environmental Defense Center and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center. In these consolidated cases on appeal from the Ninth Circuit, the Court may decide whether a citizen may challenge the EPA's interpretation of its own regulations or the EPA's determinations that stormwater in ditches and culverts along logging roads is neither industrial stormwater nor discharges from a point source that require permits. The Court heard oral arguments on these cases in early December 2012, but rather than discussing the issues upon which the Court granted certiorari, the Court focused on how to proceed given new stormwater rules the EPA issued four days before argument that were designed to overrule the Ninth Circuit's decisions. No decision has been made about whether the cases should be dismissed as moot; the Court is accepting supplemental briefing on the new rules, which must be filed by January 22, 2013.

Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc.¹

The Supreme Court handed down a unanimous ruling on January 8, 2013, in Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc., that the flow of water from a concrete channel or other engineered improvement on a river to a lower un-improved portion of the same river is not a "discharge" under the Clean Water Act and does not require a Clean Water Act permit. The Court followed its previous ruling, in South Florida Water Management District v. Miccosukee Tribe of Indians, that the transfer of polluted water between two parts of the same water body is not a "discharge" because it fails to result in the addition of any pollutant.²

Not only was the decision unanimous,³ but both parties and the United States as amicus all agreed that the Ninth Circuit's holding — that a party in control of concrete-lined channels was liable for the water flowing out of those channels and into lower portions of the river — should be reversed. The Supreme Court reversed the Ninth Circuit on that very narrow issue, but it declined to address other issues in the case. The Court's refusal to broaden the definition of "point source" and, thus, the reach of the Clean Water Act is consistent with other cases restricting the reach of federal jurisdiction.

The dispute arose after the Natural Resources Defense Council (NRDC) identified the presence of several pollutants in excess of water quality standards in concrete channels of the Los Angeles and San Gabriel Rivers.⁴ The Los Angeles County Flood Control District (District) operates a municipal separate storm sewer system that collects and transports stormwater that is eventually discharged at hundreds of outfalls into these two rivers. The District discharges its water under its own National Pollutant Discharge Elimination System (NPDES) permit. Though the District is the predominant discharger into the rivers, there are thousands of other permit-holders also discharging to these rivers.⁵ Portions of the two rivers exist within concrete channels built for flood control, and the water monitoring stations at issue are located within these channelized portions. The NRDC alleged that the exceedances demonstrated that the District was violating the terms of its permit and sued under the Clean Water Act's citizen suit provision.

The district court found that the NRDC had not shown that the exceedances registered at the monitoring stations were attributable to the District's discharges to the river, and not attributable to any of the thousands of other dischargers, and the court granted summary judgment in favor of the District.⁶ The Ninth Circuit reversed, stating that because the District owns and operates the concrete channels where the monitoring stations exist, the District is the one in control of the polluted water being discharged to the rivers at the tail end of the concrete channels.⁷ In other words, the Ninth Circuit viewed the locations where the channelized portion of the river ended as outfalls, or point sources, from which discharges to navigable waters were occurring. The Supreme Court granted certiorari on the question of whether the flow of water out of a concrete channel into a lower portion of the same river qualifies as a "discharge" of a pollutant under the Clean Water Act.

The Court addressed a version of this question in Miccosukee. There, a Florida water management district pumped water from a canal, over a levee, and into a nearby reservoir. The Court ruled that an NPDES permit would be required where a party transfers polluted water between two distinct water bodies, but if the water bodies were not meaningfully distinct, a permit would not be required.⁸ Further, the "discharge of a pollutant" requires the "addition" of any pollutant to navigable waters.⁹ The Court, in Los Angeles County Flood Control District, followed this earlier ruling and held that "the flow of water from an improved portion of a navigable waterway into an unimproved portion of the very same navigable waterway does not qualify as a discharge of pollutants" under the Clean Water Act.¹⁰

During oral argument, members of the Court pressed the District on the terms of its permit and the placement of the monitoring stations farther downstream in the rivers than many of the District's outfalls. Counsel for the District reiterated that the permits provide that each permittee is only responsible for its own discharges and that the downstream monitoring stations were intended to help gauge the river systems' general water quality, not to track individual permittee compliance. As the Court noted in its opinion, the District's renewed NPDES permit requires additional monitoring at representative outfalls farther upstream from the original monitoring locations.¹¹  Because the monitoring locations are included as conditions in permits, any shift in monitoring to be nearer to individual permittee outfalls will generally only occur, if at all, as part of the permit renewal process.

The Court did not address NRDC's request that the Court affirm on an alternative ground — that exceedances at the District's monitoring stations were enough to demonstrate violations of its permit — other than to note that those arguments failed below and were not within the narrow question upon which the Court had granted certiorari.

Virginia Department of Transportation, et al. v. EPA, et al.¹²

The U.S. District Court for the Eastern District of Virginia ruled on January 3, 2013, that the EPA has no authority to establish Total Daily Maximum Loads (TMDLs) for non-pollutants, even though regulation of a non-pollutant surrogate may be more effective than directly regulating the actual pollutant. A TMDL represents the maximum amount of a pollutant that can be introduced into a water body per day without violating water quality standards.¹³ Under Section 303(d) of the Clean Water Act, each state must measure the health of its waterbodies, and those segments with impaired health are included on a "303(d) list." The Clean Water Act requires regulators to identify the pollutants causing each impairment and then to establish the maximum daily load for each pollutant at a level necessary to achieve the applicable water quality standard. These daily loads are expressed as TMDLs.

In this case, the EPA sought to limit the amount of sediment flowing into Accotink Creek, a tributary of the Potomac River in Fairfax County, Virginia. States typically set TMDLs, but the EPA has authority to do so if the EPA disapproves of the state's submission.¹⁴ Here, Virginia failed to set TMDLs, and under a consent decree resolving litigation brought by third parties, the EPA agreed that it would set the TMDLs.¹⁵ The EPA believed high sediment loads were impairing the creek's benthic communities. The EPA opted to establish a TMDL for the stormwater discharges that carry sediment into the creek, however, and not the sediment load itself. Sediment qualifies as a pollutant under the Clean Water Act's expansive definition for "pollutant,"¹⁶ but stormwater does not.

Fairfax County and the Virginia Department of Transportation (Virginia DOT) sued the EPA to prevent its enforcement of the new stormwater TMDL. The Virginia DOT complained that in order to meet its newly allocated stormwater discharge limits, it would require a 50.5 percent reduction in the one-year, 24-hour flow rate over about 4,100 acres in the Accotink Creek watershed.¹⁷ This would require, Virginia DOT said, about $70 million in implementation costs and would force Virginia DOT to regulate stormwater runoff that enters Virginia DOT property from adjacent properties owned and controlled by others. Fairfax County made similar claims, suggesting that it would cost an additional $110 million to $215 million to comply with the TMDL's required 47.2 percent reduction to the one-year, 24-hour flow rate over almost 18,000 acres in the watershed.¹⁸

The district court ruled that the EPA exceeded its statutory authority when it attempted to regulate a pollutant (sediment) using a surrogate non-pollutant (stormwater). The district court's reasoning followed a straightforward Chevron analysis of whether the district court owed any deference to EPA's interpretation of the statute it administers.¹⁹ Under Chevron step one, the court determines whether the statute is unambiguous in addressing the precise question at issue: if Congress has squarely addressed the question, it is the end of the matter, and the court owes the agency's interpretation no deference. Here, the district court found that the Clean Water Act unambiguously grants authority for states and the EPA to establish TMDLs for pollutants, but neither states nor the EPA have any authority to set TMDLs for non-pollutants.

The EPA argued that its use of stormwater as a surrogate for sediment was more effective than regulating sediment directly. The district court rejected this argument as an "attempt by EPA to take liberties with the way Congress intended it to express its TMDLs."²⁰ The EPA may not attempt to express a TMDL in terms other than those authorized by the statute. The district court compared this to an earlier attempt by the EPA to express TMDLs not as daily limits, but as annual or seasonal limits, which the D.C. Circuit Court struck down as an expression outside the authorized terms dictated by Congress.²¹

This ruling reiterates the point that the EPA does not have complete freedom when establishing TMDLs: the EPA may not use TMDLs to reach beyond pollutants and regulate non-pollutants. The district court's opinion states that the EPA has approved 3,700 TMDLs for sediment across the United States, but has only attempted to regulate sediment via stormwater flow in four instances, with all four being challenged in court.²² The EPA has authority, of course, to regulate sediment directly, but it may not attempt to do so using a surrogate when that surrogate is not itself a pollutant.

Though this result can be seen as a victory for the regulated community, there may be situations where a regulated entity would prefer a non-pollutant surrogate that is itself easier to measure. Some argue that surrogates may be preferable for policy and pragmatic reasons. An "impervious cover" TMDL, for example, may be easier to develop because land-use planners may be more accustomed to using spatial information in their work.²³ Civil engineers and land-use planners, however, are certainly able to work with sediment parameters without incident; the 3,700 existing TMDLs for sediment demonstrate this. Regardless, the argument that civil engineers and land-use planners might be more accustomed to working with stormwater volumes than with other measures of sediment loads within stormwater in different locales is an insufficient reason to deviate from the clear terms of the statute. As the district court concluded, Congress has clearly and unambiguously foreclosed the ability of states or the EPA to set TMDLs for non-pollutants.

Footnotes

1 Los Angeles Cnty. Flood Control Dist. v. Natural Res. Def. Council, Inc., 568 U.S. ---, No. 11-460, slip op. (Jan. 8, 2013).

2 541 U.S. 95, 109-10 (2004).

3 Justice Ginsberg delivered the opinion for the Court, with seven other justices joining.  Justice Alito concurred in the judgment but did not write separately to articulate why he did not join in the Court's reasoning.

4 The concrete portions of the Los Angeles River are well-known to moviegoers as the filming location for car chase and car race scenes in numerous films, including The Italian Job, Terminator 2: Judgment Day, and Grease.

5 See Natural Res. Def. Council, Inc. v. County of Los Angeles, 673 F.3d 880, 889-90 (9th Cir. 2011).

6 See id. at 890-91.

7 Id. at 899-900.

8 Miccosukee, 541 U.S. at 111-12.

9 33 U.S.C. § 1362(12).

10 Los Angeles Cnty. Flood Control Dist., slip op. at 4.

11 Id. at 5, n.2.

12 Virginia Dep't of Transp. v. E.P.A., 2013 WL 53741 (E.D. Va. Jan. 3, 2013).

13 See 40 C.F.R. § 130.2(e) and (f).

14 See 33 U.S.C. § 1313(d)(2).

15 See American Canoe Ass'n, Inc. v. EPA, 30 F. Supp. 2d 908 (E.D. Va. 1998); Consent Decree, American Canoe Ass'n, No. 98-979-A, at 11 and Attachment A (E.D. Va. June 11, 1999) (expressing the EPA's expectation that Virginia would establish TMDLs by May 1, 2010, and in the event Virginia failed to do so, the EPA would establish TMDLs by May 1, 2011).

16 The EPA has determined that all pollutants under the Clean Water Act's definition for "pollutants" are suitable for maximum daily load measurements.  Total Maximum Daily Loads under Clean Water Act, 43 Fed. Reg. 60,662 (Dec. 28, 1978).  The Clean Water Act defines "pollutant" as "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." 33 U.S.C. § 1362(6).

17 Complaint at ¶¶ 25, 30, Virginia Dep't of Transp. v. Envtl. Prot. Agency, No. 1:12-CV-775 (E.D. Va. July 12, 2012).

18 Id. at ¶¶ 45, 49.

19 See Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984).

20 Virginia Dep't of Transp., 2013 WL 53741 at *3.

21 See Friends of the Earth, Inc. v. EPA, 446 F.3d 140 (D.C. Cir. 2006).

22 Virginia Dep't of Transp., 2013 WL 53741 at *4.  The opinion notes that of these four challenges, one has settled, and the other three are still pending.  Id. at *5.

23 See, e.g., Dave Owen, Urbanization, Water Quality, and the Regulated Landscape, 82 UNIV. OF COLO. L. REV. 432, 461-64 (2011) (discussing advantages and disadvantages of  impervious cover TMDLs); Dave Owen, An Important Stormwater Case (and It's Not the One You're Thinking of), Center for Progressive Reform blog, January 10, 2013, available at http://progressivereform.org/CPRBlog.cfm?idBlog=24EA062A-92E3-375C-A8E64B2DDA47D8BE (discussing stormwater volume TMDLs).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.