ICMA recently signed onto two amicus curiae briefs filed by State and Local Legal Center (SLLC) in a U.S. Supreme Court: one case involves the regulation of stormwater runoff from municipal separate storm sewer systems (MS4s) and the second addresses stormwater runoff from logging roads. 

The First Case: Regulation of stormwater runoff from municipal separate storm sewer systems

At the Ninth Circuit, Los Angeles County was a named party. Los Angeles County isn’t a party to the Supreme Court case as the Ninth Circuit concluded there wasn’t enough evidence to find the county liable.  

In Los Angeles County Flood Control District v. Natural Resources Defense Council a local government was held to have violated a National Pollutant Discharge Elimination System (NPDES) permit because of pollution levels in municipal separate storm sewer systems (MS4s) despite the facts that the MS4s were part of a single body of water and state and local governments regulate pollution levels in MS4s. More specifically, the Ninth Circuit held that the Los Angeles County Flood Control District exceeded NPDES permit pollution levels when water containing stormwater runoff was tested at monitoring stations located in MS4s in the Los Angeles River and San Gabriel River.

The Clean Water Act prohibits “any addition of any pollutant to navigable waters from any point source,” including MS4s, without an NPDES permit. The SLLC’s brief argues that instead of being prohibited from discharging certain amount of pollutants, like other NPDES-regulated dischargers, MS4s are only required to adopt best management practices to “reduce” the discharge of pollutants “to the maximum extent practicable” because MS4s have limited control over the pollutants contained in the stormwater runoff they collect. In South Florida Water Management District v. Miccosukee Tribe the Supreme Court held that an “addition” of a pollutant only occurs if a pollutant is transferred from one “meaningfully distinct” water body into another. The SLLC’s brief argues that the segments of the rivers above and below the MS4s in this case aren’t “meaningfully distinct,” so no addition of a pollutant has occurred. The SLLC’s brief also argues that state and local governments regulate pollution from stormwater runoff in MS4s, making federal regulation unnecessary.

A date for oral argument in this case has not yet been set.  The Supreme Court will issue an opinion in this case by June 30, 2013. Download a copy of the brief here.

The Second Case: Stormwater runoff and logging roads

 ICMA signed onto an amicus curiae brief filed by State and Local Legal Center (SLLC) in a U.S. Supreme Court case where the Court will decide at least two related questions that affect local governments, particularly counties. First, do counties that own logging roads have to obtain EPA permits for channeled stormwater runoff off on logging roads? Second, who should regulate stormwater runoff from logging roads:  state and local governments or the federal government?  Download a copy of the SLLC’s brief in the consolidated case of Decker v. Northwest Environmental Defense Center and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center here. 

Since 1973, one year after the Clean Water Act was passed, the Environmental Protection Agency (EPA) has issued regulations exempting silvicultural (logging) activity from federal permitting requirements. Yet, the Ninth Circuit held that state forest agencies and a county were required to obtain EPA permits for stormwater runoff flowing from logging roads into ditches, culverts, and channels. The SLLC’s amicus brief points out that obtaining EPA permits for every ditch and channel on every logging road in the United States would be extremely costly and burdensome for state and local governments that are already regulating such stormwater runoff.