[author: Wendy L. Manley]
On November 20, the State Water Board held a workshop to hear stakeholder concerns with the current receiving water limitation (“RWL”) in municipal storm water permits. Municipal separate store sewer system (MS4) permittees raised the issue following a 2011 Ninth Circuit decision that held a municipal discharger liable for exceeding receiving water limitations in its (MS4) permit. Los Angeles County Flood Control District v. NRDC, No. 11-460 (“NRDC”).
Like other NPDES permits, the LA County MS4 permit contained a RWL that prohibited storm water discharges that cause or contribute to an exceedance of water quality standards in receiving waters. It also contained another provision which prescribed an iterative process of evaluating and improving Best Management Practices (BMPs) whenever a water quality standard is exceeded. The two provisions were intended to operate together: so long as the permittee was engaged in the iterative process to identify and implement BMP improvements to reduce the pollutant causing the exceedance, the Water Board would not bring enforcement action on the exceedance.
Focused on the RWL, the Ninth Circuit Court of Appeals found the County liable for the exceedance of receiving water standards at a monitoring station within a channelized portion of the LA River.1 In decoupling the iterative process from the RWL language, the Court placed all MS4s2 immediately in violation and subject to stiff penalties whenever a water quality standard is exceeded. Municipal permittees are understandably alarmed to realize the iterative process in their permits no longer affords them an opportunity to investigate and correct a problem before facing penalties, which, under the Clean Water Act can be as much as $37,500 per violation per day. Additionally, in its strict application of receiving water standards to the point of discharge (“end of pipe”), the Court also rendered meaningless the “maximum extent practicable” standard specified for municipal dischargers by the Clean Water Act.
Responding to the outcry of permittees, the State Water Board agreed to consider whether revision of its RWL language might be in order. Over 60 regulated entities responded with written comments to an issue paper posted by the State Water Board in October 2012. At the November 20 workshop, many of those municipal dischargers appeared with oral comments as well, relating experiences with third party litigation, and urging the State Water Board to reestablish a mechanism, like the iterative process, that would allow them an opportunity to respond to an exceedance before facing enforcement.
Such a mechanism, or pathway to compliance, is needed in light of the realities of urban runoff control. First, pollutants sources are often unknown, difficult to identify, or beyond the municipality’s direct control. Second, studies are often necessary to more fully characterize a problem revealed by an exceedance, so that appropriate BMPs can be identified. Once selected, BMPs must be designed, budgeted and installed. The process takes time, and the money and personnel required to complete it are in short supply almost everywhere. To find cost effective solutions, municipalities also need the flexibility to evaluate and solve issues regionally, and prioritize projects over time, particularly where multiple pollutants exceed standards at numerous outfalls. And even then, some receiving water standards are simply not attainable at all times, even with the best BMPs.
Under NRDC, the iterative process no longer provides municipal dischargers a path to compliance. Instead, they face immediate and unavoidable noncompliance, no matter what they do, how much money they spend, or how stellar their programs. That immediate noncompliance dramatically increases their vulnerability to third party (citizen) lawsuits, which can easily divert hundreds of thousands of dollars from meaningful pollution control efforts. And, as revealed at the workshop, the increased risk of litigation has caused some municipalities to cease all sampling not specifically required by their permits, so as to avoid the possibility of generating ammunition for third-party lawsuits. As a result, progress toward understanding and resolving municipal storm water issues, has slowed.
Notwithstanding the extraordinarily difficult predicament municipalities face, other comments made at the workshop revealed unsympathetic views. Some water board staff, for example, expressed reluctance to believe that the NRDC decision increases MS4 vulnerability to third party litigation, absent a flood of lawsuits. And some staff are under the impression that the iterative process is rarely used. Both views were vigorously refuted by the MS4s. Permittees sparred gently with water board members about whether MS4s should be absolutely liable for the consequences of individual citizen behavior they can neither detect nor control. Citizen suers, perhaps partially out of self interest, remain adamant that water quality improvement will only be achieved with severe enforcement, regardless of feasibility or the availability of public funds. And, there was disagreement about whether any change to the RWL language would violate anti-degradation and anti-backsliding policies, or whether those policies even apply to MS4 permits.
Permittees voiced support for the Option 5 of the State Water Board’s issue paper, which provides a safe harbor to permittees that undertake a specified process of investigating and responding to the exceedance. The regulated community also supported the approach taken in the new Los Angeles County MS4 permit, which contains the RWL language but provides dischargers relief from immediate liability if they develop and implement a watershed plan. The environmental community, however, opposed any safe harbor.
If the State Water Board determines to revise the RWL, it will clearly take time to craft a solution that satisfies, or at least minimally offends, the divergent viewpoints. This is an opportunity to recognize the realities of storm water control that have come into focus since the existing RWL language was drafted, as well as to encourage newer, regional solutions which can provide multiple benefits, such as groundwater recharge, habitat, and recreation.
Meanwhile, the agency is set to adopt the new Small MS4 General Permit, with the existing RWL language, on February 5, 2013.
1 The decision raises other concerns about characterizing a river in a hardened channel as both a Waters of the U.S. and an MS4. The case has been taken up to the U.S. Supreme Court on the issues of whether transferring water from one portion of the river into another portion constitutes an addition of pollutants.” Oral arguments are December 6, 2012.
2 RWL language is standard in MS4 permits (and has been for over a decade). State Water Board precedential Orders 99-005 and 2001-15.