November | December 2014


Its a Big Year for Stormwater Runoff

By Lisa Soronen
After deciding two blockbuster cases affecting state governments last term, the U.S. Supreme Court is back on the radar of state policymakers with stormwater runoff. While not as publicized as the Affordable Care Act and Arizona immigration cases, these stormwater cases carry implications for state governments. The Council of State Governments has signed on to the State and Local Legal Center amicus curiae briefs in both cases.
Both cases really involve the same question: Who should regulate stormwater runoff—state and local governments or the federal government?
The most significant issue for states in the consolidated cases of Decker v. Northwest Environmental Defense Center and Georgia-Pacific West Inc. v. Northwest Environmental Defense Center is whether the lower court should have deferred to the Environmental Protection Agency’s longstanding position that channeled stormwater runoff from logging roads doesn’t require an EPA permit.
The Clean Water Act requires EPA permits for the “discharge of any pollutant” from a “point source,” which includes ditches and channels, into “navigable waters of the United States.” Since 1973, one year after the Clean Water Act was passed, the EPA has issued regulations exempting silvicultural (logging) activity from federal permitting requirements. Yet, the Ninth Circuit held that state forest agencies and a county were required to obtain EPA permits for stormwater runoff flowing from logging roads into ditches, culverts and channels. The Ninth Circuit reasoned that Congress didn’t exclude silvicultural activity from the definition of a “point source” and that the EPA could not exclude it through regulations.
The State and Local Legal Center’s brief argues that the Ninth Circuit was wrong in concluding that an EPA permit is required for channeled stormwater runoff from logging roads. The brief points out that obtaining EPA permits for every ditch and channel on every logging road in the U.S. would be extremely costly and burdensome for state and local governments that are already regulating such stormwater runoff.
The controversy in Los Angeles County Flood Control District v. Natural Resources Defense Council is over whether the Los Angeles County Flood Control District has violated a federal permit because of the level of pollutants from stormwater that it gathers in municipal separate storm sewer systems located in two California rivers. The State and Local Legal Center’s brief argues that instead of being prohibited from discharging a certain amount of pollutants, municipal separate storm sewer systems are only required to adopt best management practices to “reduce” the discharge of pollutants “to the maximum extent practicable” because these systems have limited control over the pollutants contained in the stormwater runoff they collect.
The technical legal question the Court will decide in this case is whether the transfer of water within a single body of water through a municipal separate storm sewer system constitutes an addition of any pollutant under the Clean Water Act. In 2004, in South Florida Water Management District v. Miccosukee Tribe, the Supreme Court held that an addition of a pollutant only occurs if a pollutant is transferred from one “meaningfully distinct” water body into another. The State and Local Legal Center’s brief argues that the segments of the rivers above and below the municipal separate storm sewer systems in this case aren’t “meaningfully distinct,” so no addition of a pollutant has occurred. This seems like a foregone conclusion; the sewer systems are parts of both rivers.
The Supreme Court will issue an opinion in both of these cases by June 30, 2013. Download the State and Local Legal Center’s amicus briefs at www.statelocallc.org.
 
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Visit the CSG Knowledge Center to read Soronen's summary of issues before the Supreme Court in the previous term.