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Friday, September 17, 1999
Copyright © Las Vegas Review-Journal
States can ignore pollution limits in storm water
Associated Press
SAN FRANCISCO -- In a defeat for environmentalists, a federal appeals court ruled that cities in nine Western states don't have to follow their state's pollution limits when discharging storm water into rivers and streams.
The 9th U.S. Circuit Court of Appeals said Wednesday the U.S. Environmental Protection Agency can order local governments to clean up their storm-waste discharges and to use the best available pollution-control practices without holding them to a state's discharge limits for each pollutant.
The EPA also has the authority to go further and require local governments to meet numerical discharge limits, the court said.
The 3-0 ruling, in a case from Arizona, is the first on the issue by any federal court. It is binding in the nine states of the nation's largest appellate circuit, which includes Nevada.
It arose from a challenge by Defenders of Wildlife and the Sierra Club to EPA permits for Phoenix, Tucson, Tempe, Mesa and Pima County. National associations of city and county governments and flood-control agencies urged the court to reject a strict standard for storm water permits.
A lawyer for the Arizona cities said the ruling frees local governments to control the main sources of pollution -- discharges by property owners into storm-water systems -- rather than concentrating on the content of the systems' discharges into waterways.
"It directs the focus on developing best-management practices, which is what we think Congress intended," said Craig Reece, an assistant city attorney in Phoenix. "It will ultimately allow more effective control of storm-water pollution."
But Jennifer Anderson, a lawyer for the environmental groups, said there was no evidence the practices ordered by the EPA would meet Arizona water-quality standards.
"We think you need numeric effluent limitations to assure compliance," said Anderson, with the Arizona Center for Public Interest Law. She said she might ask for a rehearing by a larger panel.
Before the current EPA permits were issued in 1997, Anderson said, storm-water discharges in the Phoenix area periodically exceeded state standards for such toxic substances as lead, cadmium and cyanide, and discharges in both Phoenix and Tucson often violated limits for fecal coliform bacteria.
She said no information was available for post-permit discharges. Reece had no data either, but said the cities "are satisfied that (their efforts) are bringing about substantial reductions of pollutants into the rivers."
The EPA first proposed granting permits to the local agencies without referring to state water standards. After objections by environmental groups and the state, the EPA required the agencies to take such steps as isolating and treating toxic substances and removing illegal discharges, and declared that those measures would comply with state standards.
In upholding the EPA, the appeals court said federal law sets a strict compliance standard for industrial discharges into waterways but is more flexible for discharges from municipal storm-water systems.
The EPA has "discretion to determine what pollution controls are appropriate," said the opinion by Judge Susan Graber. She said the EPA can decide whether to require compliance with state standards, and whether to achieve such compliance by management practices or numerical limits.
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