As cities and counties across the country were rushing to meet the NPDES Phase II deadline, more legal wrangling was taking place over the stormwater rule, which could eventually cause some backtracking for cities and counties covered by it. Phase II was challenged on many counts-some trying to strengthen it, others to limit its authority or get it thrown out altogether. The Ninth Circuit Court of Appeals consolidated three different cases and ruled on them together. The most dramatic change, and the one most likely to cause backlogs in the permitting process, is the court’s decision that Phase II illegally allows operators of small MS4s to regulate themselves. This stems from the way EPA handles notices of intent (NOIs) under the Phase II General Permit option. In one of the original cases, the Environmental Defense Center Inc. challenged that Phase II doesn’t do enough to meet the intent of the Clean Water Act because it allows small MS4s to design their own programs without sufficient oversight. The court agreed, noting that under the traditional general permitting model, the NOI a discharger files is really nothing more than formal acceptance of the terms laid out in the general permit, including output limitations and technology-based requirements to protect water quality. In contrast, a Phase II NOI must address the six minimum control measures, essentially creating an individualized pollution control program, and therefore should be carefully scrutinized by the permitting authority to ensure compliance. Even EPA itself, the court pointed out, declined to provide a simple “form NOI” for Phase II because of the individualized information each permittee must include. Specifically, the court said, it’s the requirement to reduce pollution to the maximum extent practicable that makes such oversight necessary: “Under the Phase II Rule, in order to receive the protection of a general permit, the operator of a small MS4 needs do nothing more than decide for itself what reduction in discharges would be the maximum practical reduction. No one will review that operator’s decision to make sure that it was reasonable, or even good faith,” the court stated. The Environmental Defense Center also charged that Phase II doesn’t allow for sufficient public participation. The court agreed that NOIs should be subject to the Clean Water Act’s public availability and public hearings requirements, and it rejected EPA’s argument that Phase II’s “public involvement” minimum control measure and the Freedom of Information Act, between them, allow sufficient public access and participation. The court remanded both these aspects of the Phase II rule to EPA for revision. How exactly this will affect cities and counties that have filed NOIs is not yet clear; permitting authorities that have to conduct more thorough reviews will most likely face increased backlogs. Some cities might have to tweak their programs as a result of either more stringent review or greater public scrutiny, and the changes will trickle down to those working in the affected areas. In the long run, both changes should strengthen the Phase II rule and make it, perhaps, less vulnerable to future lawsuits, but the short-term result will be costly delays. In another case the court dealt with at the same time, two Texas coalitions of cities and counties argued that EPA oversteps its authority with the Phase II rule, violating both the First and Tenth Amendments-the First by forcing MS4 operators to deliver a specific message through the “public education and outreach” minimum control measure, and the Tenth by compelling Phase II cities and counties to regulate third parties in the attempts to reduce runoff from construction sites and eliminate illicit discharges. The court rejected both those claims. The full court ruling is available at www.ca9.uscourts.gov/ca9/newopinions.nsf, opinion 00-70014.
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Andrea Weissenbuehler
