ELR Citation: ELR 20116
No(s). 98-71080 (9th Cir. Sep 15, 1999)

The court denies environmental groups' petition to review the U.S. Environmental Protection Agency's (EPA's) decision to issue national pollutant discharge elimination system (NPDES) stormwater permits to five municipalities without requiring numeric limitations to ensure compliance with state water quality standards. The court first holds that the Water Quality Act, which amended the Federal Water Pollution Control Act (FWPCA) to include the stormwater discharge requirements, unambiguously demonstrates that Congress did not require municipal sewer discharges to comply strictly with FWPCA §301(b)(1)(c)'s requirement that NPDES permits comply with state water quality standards. In FWPCA §402(p)(3)(A), Congress expressly required industrial stormwater discharges to comply with FWPCA §301, but Congress chose not to include a similar provision for municipal storm sewer discharges in FWPCA §402(p)(3)(B)(iii). Congress' choice to require industrial stormwater discharges to comply with FWPCA §301, but not to include the same requirement for municipal discharges, must be given effect. Further, requiring municipal stormwater discharge compliance with FWPCA §301 would render FWPCA §402(p)(3)(B)(ii) superfluous because for municipal storm sewer discharge, FWPCA §301's more stringent standard would always control over FWPCA §402(p)(3)(B)(iii)'s lesser standard. Moreover, according to circuit precedent, Congress did not mandate a minimum standards approach, such as complying with state standards, when it enacted the FWPCA §402(p)(3)(B)(iii) requirements for municipal storm sewer discharge. The court next holds that although Congress did not require municipal storm sewer discharges to comply with FWPCA §301(b)(1)(C), FWPCA §402(p)(3)(B)(iii) gives EPA the discretion to require strict compliance with state water quality standards in order to control pollutants.

Counsel for Petitioners
Jennifer Anderson
Arizona Center for Law in the Public Interest
1840 E. River Rd., Ste. 207, Tucson AZ 85718
(520) 529-1798

Counsel for Respondent
Alan Greenberg
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Noonan and Thompson, JJ.