City of Abilene v. U.S. E.P.A., 01-60894.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtEmilio M. Garza
Citation325 F.3d 657
PartiesCITY OF ABILENE, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. City of Irving, Petitioner, v. United States Environmental Protection Agency, Respondent.
Docket NumberNo. 01-60894.,No. 01-60895.,01-60894.,01-60895.
Decision Date02 April 2003
325 F.3d 657
CITY OF ABILENE, Petitioner,
City of Irving, Petitioner,
United States Environmental Protection Agency, Respondent.
No. 01-60894.
No. 01-60895.
United States Court of Appeals, Fifth Circuit.
April 2, 2003.

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Jim Mathews (argued), Clarence Joe Freeland, Mathews & Freeland, Austin, TX, for Petitioners.

Michael James Zevenbergen (argued), c/o NOAA DARC, U.S. Dept. of Justice, Seattle, WA, Christine T. Whitman, U.S. EPA, Washington, DC, for Respondent.

Petitions for Review of Final Permits Issued by the Environmental Protection Agency.


EMILIO M. GARZA, Circuit Judge:

The Cities of Abilene and Irving, Texas ("Cities") petition this Court for review of permits issued by the Environmental Protection Agency ("EPA") imposing certain conditions on the Cities' ability to discharge pollutants from their storm sewer systems into United States waters. The challenged permit conditions require the Cities to implement a variety of programs designed to prevent the introduction of pollutants into storm sewers. The Cities contend that the EPA lacks the statutory authority to impose these conditions insofar as they require the Cities to regulate their residents according to federal standards. In the alternative, the Cities argue that the permits violate the Tenth Amendment to the United States Constitution by compelling them to administer a federal regulatory scheme. The Cities also contend that the public education requirements in their permits violate the First Amendment by compelling them to convey the EPA's message regarding the proper disposal of pollutants. Finally, the Cities argue that the permits are arbitrary and capricious. Because the record before us does not support these contentions, we deny the petitions for review.


"The Clean Water Act anticipates a partnership between the States and the Federal Government, animated by a shared objective: `to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'" Arkansas v. Oklahoma, 503 U.S. 91, 101, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992) (quoting 33 U.S.C. § 1251(a)). Under the Act, an entity seeking to discharge pollutants into the waters of the United States must obtain a National Pollutant Discharge Elimination System ("NPDES") permit. 33 U.S.C. §§ 1311(a), 1342(a). NPDES permits generally impose numeric effluent limitations on the discharge of pollutants. 33 U.S.C. §§ 1311(b), 1342(a); see also 33 U.S.C. § 1362(11) (defining "effluent limitation" as "any restriction ... on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean...."). An NPDES permit requiring the permittee to meet specific effluent limitations measured at the point of discharge is referred to as a "numeric end-of-pipe permit."

Because storm water inevitably contains pollutants such as sand or cellar dirt, 33 U.S.C. § 1362(6), an NPDES permit is required for the discharge of certain types of storm water into the waters of the United States. Permits for municipal and industrial storm water discharges are governed by 33 U.S.C. § 1342(p) and 40 C.F.R. § 122.26. While permits for discharges of storm water associated with industrial activity must impose effluent limitations, § 1342(p) authorizes the EPA to issue permits for discharges from municipal separate storm sewer systems ("MS4s") that effectively prohibit the introduction of non-storm water into the MS4 and establish management practices

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and other methods "to reduce the discharge of pollutants to the maximum extent practicable." 33 U.S.C. § 1342(p)(3). This more flexible type of permit is referred to as a "management permit."

The Cities, which have populations between 100,000 and 250,000, operate "medium" MS4s, 40 C.F.R. § 122.26(b)(7)(i), and were required to participate in the two-phase permit application process under 40 C.F.R. § 122.26(d). During the second phase of this process, the Cities were required to submit proposed storm water management programs ("SWMPs") describing how they would reduce the discharge of pollutants. 40 C.F.R. § 122.26(d)(2)(iv) ("Proposed [SWMPs] will be considered by the Director when developing permit conditions...."). The Cities and the EPA negotiated the terms of the SWMPs, and the EPA eventually presented the Cities with proposed management permits containing the challenged conditions. These conditions required the Cities to develop, implement, and enforce programs to prevent the discharge of pollutants into their MS4s from a variety of sources, including areas undergoing development, construction sites, sanitary sewers, landfills, hazardous waste treatment facilities, and certain industrial facilities. The conditions also required the Cities to prevent the discharge of motor oil, household wastes, and various agricultural products into MS4s and to implement a public education program promoting proper disposal of pollutants.

The Cities filed comments objecting to these conditions, and negotiations continued until the EPA offered the Cities the option of pursuing numeric end-of-pipe permits, which would have required the Cities to satisfy specific effluent limitations rather than implement management programs. The Cities declined this offer, electing to continue negotiations on the management permits. The Cities subsequently submitted revised SWMPs, which were incorporated into the conditions of the final permits. After the Cities' requests for relief were denied by the EPA's Environmental Appeals Board, they petitioned this Court for consolidated review.


The Cities challenge their permits on both statutory and constitutional grounds. "[F]ederal courts have a ... duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration." ACORN v. Edwards, 81 F.3d 1387, 1390-91 (5th Cir.1996) (quoting County Court of Ulster County v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979) (internal brackets omitted)). Accordingly, we consider the Cities' statutory challenge first.

The Cities contend that 33 U.S.C. § 1342(p) does not grant the EPA the authority to require a State or locality to regulate its residents as a condition of receiving a storm water discharge permit. They further contend that the EPA's interpretation of § 1342(p) is not entitled to deference under Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), because that interpretation "invokes the outer limits of [federal] power." Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 172, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001). Section 1342(p) provides, in relevant part, that MS4 discharge permits "shall include a requirement to effectively prohibit non-stormwater discharges into the storm sewers" and "shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator

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... determines appropriate for the control of such pollutants." 33 U.S.C. § 1342(p)(3)(B) (emphasis added). The plain language of § 1342(p) clearly confers broad discretion on the EPA to impose pollution control requirements when issuing NPDES permits. See Arkansas, 503 U.S. at 105, 112 S.Ct. 1046 ("Congress has vested in the [EPA] broad discretion to establish conditions for NPDES permits."); Defenders of Wildlife v. Browner, 191 F.3d 1159, 1166-67 (9th Cir.1999) ("Under 33 U.S.C. § 1342(p)(3)(B)(iii), the EPA's choice to include either management practices or numeric limitations in [NPDES] permits [for MS4s] was within its discretion.").1 Thus, even if Chevron deference is not warranted, the challenged permit conditions are within the EPA's discretion.


The Cities do not contend that 33 U.S.C. § 1342(p) or 40 C.F.R. § 122.26(d) are, by their own terms, unconstitutional. The Cities concede that, under the Commerce Clause, Congress may directly regulate the discharge of storm water into United States waters. The Cities have instead brought an as-applied challenge, arguing that their permits violate the Tenth Amendment by requiring them to regulate third parties within their boundaries according to federal standards.2

The Tenth Amendment states that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. CONST. amend. X. Although "the text of the Tenth Amendment ... is essentially a tautology," it nevertheless "confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States." New York v. United States, 505 U.S. 144, 156-57, 112 S.Ct. 2408, 120...

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