Policy Points

Feb. 6, 2017
Challenges to state MS4 permits

About the author: Brenna Mannion is director of regulatory affairs and outreach for the National Association of Clean Water Agencies (NACWA). Mannion can be reached at [email protected]. Nathan Gardner-Andrews is chief advocacy officer for NACWA. Gardner-Andrews can be reached at [email protected].


Late last year, the U.S. Environmental Protection Agency signed the final Municipal Separate Storm Sewer System (MS4) General Permit Remand Rule. Until then, the federal government had not promulgated a significant storm water regulation in more than a decade. The rule will ensure more oversight and public participation in the storm water general permit process as required by a 2003 federal court ruling, but will not impact the substantive requirements of the national MS4 program.

While the federal government may not be making regulatory changes, the municipal storm water community has experienced an overall increase in the complexity of regulatory requirements and a shift toward “second-generation” permits.

We have seen an increase in challenges to state storm water permits across the county. These challenges can take different forms. If the permits are not considered stringent enough, resistance can come from environmental and grassroots groups. But in areas where state permits encourage performance standards, challenges often come from the development community and municipal interests. This legal activity likely will continue at a consistent or increased rate under a Republican Congress and administration that will be less likely to move significant environmental regulation forward.

Not Strict Enough

Phase I MS4 permits issued by the Maryland Department of the Environment to Anne Arundel County, the city of Baltimore, Baltimore County, Montgomery County and Prince George’s County recently were challenged by environmental organizations arguing that the permits were not restrictive enough and did not comply with federal and state law. While the permits required the counties to restore impervious surface area and comply with Chesapeake Bay water quality plans, the challenges argued that they were inadequate because they did not require “strict compliance” with water quality standards.

Although the Maryland Court of Appeals agreed that federal law does not require storm water permits to mandate such strict compliance, it had concerns about the lack of clear “objective metrics” in the permits and the lack of sufficient public review. The permits were sent back to the state for further modification. Although issues around these permits eventually were resolved, it took a journey through the court system to reach a resolution. Extended legal battles like this undermine the permittees' ability to implement storm water programs when the ultimate goals remain in legal limbo.

Too Strict

On the flip side, there can be legal issues when entities consider a permit to be too strict. For example, a Tennessee storm water law requires MS4 permits issued by the state to be no more restrictive than federal requirements for post-construction management of storm water. A coalition of homebuilder and development interests supported the bill. Municipalities were concerned that it would lessen the ability of local governments to use post-construction onsite retention standards for managing storm water.

A few months after the law was passed, the same development interests appealed the Tennessee Phase II Stormwater General Permit on grounds that “the terms and conditions of the Permit relating to permanent storm water management” are more stringent than federal minimum requirements. The challenges argue that Congress adopted a flexible approach to the control of pollutants in MS4s; thus, there is not an explicit minimum to point to. This bill and subsequent lawsuit set a concerning precedent for other states, especially where municipal storm water utilities are interested in using such standards as part of their storm water management programs and must determine whether individual performance standards exceed the federal minimum.

While the MS4 community may not be looking at any significant new federal regulations in the coming years, there likely will be more legal challenges to permits that could impact how the regulatory environment unfolds. The message for MS4 professionals is clear: Do not ignore the courts.