Stormwater and CSO Litigation Update

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Stormwater and CSOLitigation Update

• David W. Burchmore
• Squire, Sanders Dempsey L.L.P.
• 4900 Key Tower
• Cleveland, OH 44114
• Phone [phone]
• Fax [phone]
• Email dburchmore_at_ssd.com

Presented at the 2008 WWP/NACWA Seminar on Green
Solutions, Water Quality Compliance Strategies
and Key Long Term Control Plan Developments Chicag
o, April 17-18, 2008
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STORMWATER LITIGATION
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Background

• 1987 CWA Amendments add 402(p), establish
  MEP as separate standard for MS4 discharges
• 1990 Phase I permit regulations
• 1996 EPAs Interim Permitting Approach
• 1999 Defenders of Wildlife v. Browner, 197 F.3d
  1035 (9th Cir.1999)
• 1999 Phase II permit regulations
• 2002 EPA Memo on Establishing TMDL WLAs for
  Storm Water Sources and NPDES Permit Requirements
  Based on those WLAs
• 2003 Environmental Defense Center v. Browner,
  344 F.3d 832 (9th Cir.2003)

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CWA 402(p)(3)

• (A) Industrial discharges
• Permits for discharges associated with
  industrial activity shall meet all applicable
  provisions of this section and section 1311 of
  this title.
• (B) Municipal discharge
• Permits for discharges from municipal storm
  sewers
• (i) may be issued on a system- or
  jurisdiction-wide basis
• (ii) shall include a requirement to effectively
  prohibit non-stormwater discharges into the storm
  sewers and
• (iii) shall require controls to reduce the
  discharge of pollutants to the maximum extent
  practicable, 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.

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Washington D.C.numeric limits?

• 2000 EPA Region 3 issues D.C. MS4 permit with
  numeric limits at one outfall permit challenged
  by Defenders of Wildlife et al.
• 2002 EPAs Environmental Appeals Board holds
  that EPA may use BMPs in lieu of numeric limits
• 2004 Region 3 reissues the permit without
  numeric limits Defenders appeal again NAFSMA,
  NACWA, NLC and others intervene
• 2006 Region 3 issues final modification without
  numeric limits and deleting the absolute
  prohibition against WQS exceedances both D.C.
  and Defenders file appeals

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Washington D.C.numeric limits?

• 2007 Parties ask for eighth stay of appeal
• 10/29/07 Permit withdrawn by Region 3 and
  appeal dismissed
• 12/4/07 District of Columbia and Region 3
  announce that they have agreed to major Green
  Infrastructure enhancements to protect the
  Potomac and Anacostia Rivers from the detrimental
  effects of stormwater runoff
• Enhancements will include the use of trees, green
  roofs and vegetated buffers
• Enhancement package will be incorporated into the
  citys MS4 permit when re-issued

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Californiabeyond MEP?

• 1999 California SWRCB requires standard WQS
  compliance language in state permits (WQ 99-05)
• 2001 SWRCB rules in San Diego MS4 permit appeal
  that federal law does not require strict
  compliance with WQS, but state can require MS4s
  to achieve WQS through an iterative BMP approach
  (WQ 01-15)
• 2003 San Diego permit upheld by state trial
  court
• 2004 San Diego permit upheld by state court of
  appeals (Building Industry Assn v. SWRCB, 124
  Cal. App. 4th 866 22 Cal. Rptr. 3d 128)
• Court rules that federal law allows the
  permitting agency to impose standards stricter
  than MEP if it finds they are appropriate

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Californiabeyond MEP?

• 2005 California Supreme Court rules that
  economic considerations must be taken into
  account when imposing permit limitations more
  stringent than required under federal law (City
  of Burbank v. SWRCB, 35 Cal. 4th 613, 108 P.3d
  862)
• 2006 L.A. County permit upheld by state court
  of appeals (County of Los Angeles v. SWRCB, 143
  Cal. App. 4th 985 50 Cal. Rptr. 3d 619)
• Lower court had ruled in 2005 that no
  cost-benefit analysis was required because permit
  did not go beyond MEP and was not more stringent
  than federal law

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Californiabeyond MEP?

• Similar result in City of Rancho Cucamonga v.
  RWQCB, 135 Cal. App. 4th 1377, 38 Cal. Rptr. 3d
  450 (2006) (no showing that permit went beyond
  MEP)
• 2006 L.A. County permit requires compliance
  with bacteria TMDLs for Santa Monica Bay
• 2007 Draft Ventura County permit has numeric
  limits to meet various TMDLs 122-page permit
  states that it is not more stringent than federal
  law since TMDLs must be translated into
  end-of-pipe effluent limitations

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Oregonbenchmarks

• 1994 Phosphorus TMDL for Tualatin River basin
• 1995 MS4 Permit for Unified Sewerage Agency et
  al.
• 2000 Tualatin Riverkeepers sues EPA for
  approving permit without numeric limits to meet
  TMDL and WQS
• 2001 Case refiled, and dismissed again
• 2004 Riverkeepers takes appeal to Land Use
  Board
• 2006 Riverkeepers files appeal in County
  Circuit Court, alleging permits fail to meet
  Oregon WQS
• 4/19/07 Circuit court grants S.J. to Oregon DEQ
• DEQ permits use benchmark values, which are not
  enforceable permit limits, but trigger an
  adaptive management process to improve existing
  BMPs

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VermontBMPs compliance

• March 2003 Vermont MS4 general permit relies on
  BMPs to achieve MEP and to implement TMDLs
• 2003-04 CLF argues that permit must prohibit
  any violation of state WQS and have measurable
  goals for compliance with Lake Champlain
  phosphorus TMDL
• July 2005 Settlement leaves key provisions
  intact
• 1.3.6 - prohibits only discharges that fail to
  reduce the discharge of pollutants . . . to the
  maximum extent practicable (MEP), to protect
  water quality, and to satisfy the appropriate
  water quality requirements of the Clean Water
  Act.
• 3.1.4 - assessing compliance with TMDLs will
  be based on your implementation and maintenance
  of best management practices not on estimates or
  measurements of pollutant loading.

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North Carolina

• 2005 North Carolina DENR issues Phase II
  permits to Mecklenburg County and others
• Permits challenged by Wildlife Federation and
  Sierra Club for failure to 1) require compliance
  with state WQS 2) require compliance with MEP
  and 3) include effluent limits to meet the Goose
  Creek TMDL
• 2006 ALJ submits recommended decision to EMC
• 2007 EMCs final action modifies the ALJs
  decision and upholds the permits with additional
  provisions for buffer zones to protect the
  Carolina heelsplitter mussel
• Decision based in part on the view that
  implementing BMPs which are consistent with the 6
  minimum control measures constitutes compliance
  with MEP

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North Carolina (cont.)

• Subsequent permit issued to City of Raleigh (June
  2007) provides that
• compliance with the six minimum measures
  constitutes compliance with the permit and the
  Clean Water Act implementation of BMPs
  consistent with the SWMP constitutes compliance
  with MEP
• compliance with any TMDLs is to be achieved by
  the submission and implementation of a Water
  Quality Recovery Program, which includes a
  monitoring plan and additional BMPs as necessary
  to meet the WLAs in the TMDL

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North Carolina (cont.)

• Troublesome dicta in the Goose Creek decision
  suggests that MEP requires more of permittees
  than mere compliance with water quality standards
  or numeric effluent limitations designed to meet
  such standards, and that permittees may be
  required to go beyond compliance with water
  quality standards and implement stormwater
  measures that are more than standard practice
• The only legal authority cited for this position
  is the original Ninth Cir. decision in EDC v. EPA
  (1/14/03), which was superseded by the substitute
  opinion issued after the petition for rehearing
  supported by NAFSMA, NACWA, NLC and NACo
  (9/15/03).

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Original opinion in EDC v. EPA, 319 F.3d 398
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Substitute opinion in EDC v. EPA, 344 F.3d 832
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Washington State

• 1/17/07 Phase I permits reissued for Seattle,
  Tacoma and 4 counties Phase II permits issued
  for Western Washington (80 cities, 5 counties)
  and Eastern Washington (20 cities, 8 counties)
• Condition S.4 of the permits states that
  exceedances of state standards are prohibited,
  that the permit does not authorize discharges
  which would cause or contribute to an exceedance,
  and that certain procedures must be followed in
  response to violations of state standards
• Fact Sheet says that the CWA 402(p) does not
  require strict compliance with WQS, but gives the
  state discretion to determine whether strict
  compliance is appropriate

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Washington State (cont.)

• Appeals filed by various environmental groups, 10
  Phase I cities, and coalition of 33 Phase II
  cities
• 1/16/08 Six separate Summary Judgment motions
  were filed on Condition S.4 together with
  responses and replies a total of 27 briefs were
  filed
• NACWA and NAFSMA filed amicus brief on federal
  law issues
• Key legal question is whether federal or state
  law requires MS4 discharges to comply with state
  WQS
• 4/2/08 PCHB ruled on that federal law does not,
  but state law does
• 4/16/08 Evidentiary hearing on practical
  meaning and operation of Condition S.4

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CSO LITIGATION
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NACWAs Consent Decree Handbook

• Published 2003 summarized 43 municipal wet
  weather consent decrees (state and federal)
• Supplement (Nov. 2006) summarized 19 new wet
  weather consent decrees

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Indianapolis, IN (October 2006)

• City has 2 WWTPs and serves 866,000 246 sq. mi.
  of sewers with 133 CSOs
• 1.86 billion in improvements over 20 years to
  reduce CSO discharges
• 1.1 million civil penalty
• 2 million supplemental environmental project to
  eliminate failing septic systems
• Level of control
• 97 capture (2 events/year) on Fall Creek
• 95 capture (4 events/year) on other waterways
• Decree has offramps based on total cost,
  financial conditions, water quality standards,
  compliance issues

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San Diego (July 2007)

• City serves 1.2 million residents over 330 sq. mi
  area has 2,800 miles of sewer lines and 84 pump
  stations
• Comprehensive decree is third settlement
  (previous decrees in 2005 and 2006)
• 1 billion in improvements over 6 years
• City must repair, replace or rehabilitate 250 mi.
  of pipeline by 2013 (it has already repaired or
  replaced 200 mi. under its previous settlements)
• City will continue its enhanced programs for
• inspection maintenance
• cleaning, root control sewer repair
• grease control

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Nashville, TN (October 2007)

• 300 to 400 million in improvements to eliminate
  SSOs and control CSOs
• Worst SSOs (50 of total) must be addressed in 2
  years
• 282,019 civil penalty to U.S. 282,019 to State
• 2.8 million in supplemental environmental
  projects (extending service area to eliminate
  failing septic systems)

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Fort Wayne, IN (December 2007)

• City serves 220,000 has 60 overflows/year
• 250 million in improvements to reduce CSOs
• 538,380 civil penalty divided between U.S. and
  State State share can be reduced by additional
  SEPs)
• 400,000 supplemental environmental project (to
  eliminate failing septic systems)
• Control level
• One event/year on St. Joseph River
• 4 events/year on St. Marys and Maumee Rivers

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Lexington, KY (March 2008)

• County has 2 WWTPs and serves 250,000
• 290 million in sewer system improvements to
  eliminate sanitary sewer overflows (within 11-13
  years) and reduce stormwater pollution
• 425,000 civil penalty
• 2.73 million for supplemental environmental
  projects, including
• 1 million in stream restoration
• 230,000 in green infrastructure projects to
  manage stormwater runoff (rain gardens, porous
  pavements, green roofs, infiltration planters,
  trees and tree boxes, and rainwater harvesting
  for non-potable uses)