Environmental groups have obtained a favorable Clean Water Act (“CWA”) ruling from the U.S. District Court for the Central District of California, which can be viewed as an expansion of jurisdiction for stormwater permitting for industrial sources.  In the Order, issued on August 9, 2018, Judge Stephen V. Wilson held that if the U.S. Environmental Protection Agency (“EPA”) determines that stormwater discharges “cause or contribute to violations of water quality standards,” then regulators must limit such stormwater discharges under the mandates of the CWA.  EPA is required to regulate stormwater discharges through the National Pollution Discharge Elimination System (“NPDES”) permitting scheme, and does not have discretion to address the pollution through other methods.

Federal regulations authorize any person to petition the EPA “to require a NPDES permit for a discharge which is composed entirely of storm water which contributes to a violation of a water quality standard.” 40 C.F.R. § 122.26(f)(2).  Pursuant to that regulation, Plaintiffs submitted two petitions to EPA Region 9, which oversees Clean Water Act compliance in California.  Plaintiffs petitioned EPA to a make a determination that unpermitted stormwater discharges from privately-owned commercial, industrial, and institutional (“CII”) sources  at two different Los Angeles area watersheds are contributing to violations of water quality standards in the watersheds, and therefore CII sources must obtain a NPDES permit.  EPA denied the petition.  Although EPA found that stormwater discharges from CII sources were “‘contributing to water quality impairments’ at the watersheds,” EPA determined that NPDES permits were not necessary because “existing programs are underway to adequately address the impairments,” such as California’s municipal separate storm sewer system permits.  Order at 4-5.

In plaintiffs’ ensuing lawsuit, the District Court granted plaintiffs’ motion for summary judgment, concluding that “EPA acted arbitrarily and capriciously in denying Plaintiffs’ permits and leaving the stormwater discharges at issue unregulated.”  Order at 7.  Under the CWA, “stormwater discharges that travel through storm sewers are point source discharges subject to NPDES permitting requirements.”  Id. at 3 (citing to Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 841 (9th Cir. 2003)); 33 U.S.C. § 1342.  Therefore, “once EPA determined “there are sufficient data available to demonstrate that stormwater discharges are contributing to water quality impairments in the Watersheds, the statute required EPA to engage in the permitting process or prohibit the discharge.”  Order at 8 (citations omitted) (emphasis in original).  The Court determined that EPA was either required to prohibit the discharge, or regulate the discharge subject to the NPDES permitting scheme.  The Court rejected EPA’s argument that California’s MS4 permit adequately regulates the discharge because the text of the CWA does not permit EPA to consider whether other federal, state, or local programs adequately address the known stormwater discharge contribution to a violation of water quality standards in making its determination whether to impose NDPES permitting requirements.  Finally, EPA’s determination of whether to regulate the discharge was not entitled to deference under the CWA.

While the District Court’s Order is limited in scope because it only overturns the EPA denial of the petition for NPDES permitting for the Los Angeles region, other district courts may follow the Central District’s lead.  Additionally, this case may remind readers of other recent CWA cases in which the Ninth and Fourth Circuits held that an indirect discharge – such as a discharge to ground water – falls within the scope of the CWA, if the indirect discharge is sufficiently connected to, or “fairly traceable to,” navigable waters covered under the CWA.  Upstate Forever et al. v. Kinder Morgan Energy Partners LP, et al. (4th Cir., issued Apr. 12, 2018); Hawaii Wildlife Fund et al. v. County of Maui, Case No. 15-17447 (9th Cir., filed Feb. 1, 2018).  Both cases have a petition for a writ of certiorari pending before the U.S. Supreme Court, with responses due in October 2018.  Taken together, these new CWA cases have broadly expanded the reach of the CWA.  We will continue to update our readers on these cases, as well as their fate on appeal.

The District Court case is Los Angeles Waterkeeper, et al. v. Pruitt, et al., Case No. 2:17-CV-03454-SVW-KS (C.D. Cal., issued Aug. 9, 2018).