Environmental Defense Center, Inc. v. U.S. E.P.A., No. 00-70014.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtJames R. Browning
Citation319 F.3d 398
PartiesENVIRONMENTAL DEFENSE CENTER, INC., Petitioner, Natural Resources Defense Council, Inc., Petitioner-Intervenor, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. American Forest & Paper Association; National Association of Home Builders, Petitioners, v. United States Environmental Protection Agency, Respondent, Natural Resources Defense Council, Inc., Applicant-Intervenor. Texas Cities Coalition on Stormwater; Texas Counties Storm Water Coalition, Petitioners, v. United States Environmental Protection Agency, Respondent, Natural Resources Defense Council, Inc., Respondent-Intervenor.
Decision Date14 January 2003
Docket NumberNo. 00-70734.,No. 00-70014.,No. 00-70822.
319 F.3d 398
ENVIRONMENTAL DEFENSE CENTER, INC., Petitioner,
Natural Resources Defense Council, Inc., Petitioner-Intervenor,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
American Forest & Paper Association; National Association of Home Builders, Petitioners,
v.
United States Environmental Protection Agency, Respondent,
Natural Resources Defense Council, Inc., Applicant-Intervenor.
Texas Cities Coalition on Stormwater; Texas Counties Storm Water Coalition, Petitioners,
v.
United States Environmental Protection Agency, Respondent,
Natural Resources Defense Council, Inc., Respondent-Intervenor.
No. 00-70014.
No. 00-70734.
No. 00-70822.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted December 3, 2001.
Filed January 14, 2003.

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Victoria Clark, Environmental Defense Center, Santa Barbara, CA, for petitioner Environmental Defense Center, Inc.

Andrew G. Frank and Arlene Yang, Paul, Weiss, Rifkind, Wharton & Garrison, New York, NY, and Nancy K. Stoner, Natural Resources Defense Council, Washington, DC, for intervenor National Resources Defense Council, Inc.

R. Timothy McCrum, Ellen B. Steen, and Donald J. Kochan, Crowell & Moring, Washington, DC, for petitioners American Forest & Paper Association and National Association of Home Builders.

Steven P. Quarles and J. Michael Klise, Crowell & Moring, Washington, DC, and William R. Murray, American Forest & Paper Association, Washington, DC, for petitioner American Forest & Paper Association.

Jim Mathews and Clarence Joe Freeland, Mathews & Freeland, Austin, TX, for petitioner Texas Cities Coalition on Stormwater.

Sydney W. Falk, Jr. and William D. Dugat III, Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, Austin, TX, for petitioner Texas Counties Storm Water Coalition.

John C. Cruden, Daniel M. Flores and Kent E. Hanson, United States Department of Justice, Washington, DC, and Stephen J. Sweeney, United States Environmental Protection Agency, Washington, DC, for respondent United States Environmental Protection Agency.

On Petition for Review of an Order of the Environmental Protection Agency. EPA No. Clean Water 40 CFR.

Before: BROWNING, REINHARDT, and TALLMAN, Circuit Judges.

Opinion by Judge JAMES R. BROWNING; Partial Concurrence and Partial Dissent by Judge TALLMAN.

JAMES R. BROWNING, Circuit Judge.


Petitioners challenge a rule issued by the United States Environmental Protection Agency pursuant to the Clean Water Act, 33 U.S.C. §§ 1251-1387, to control pollutants introduced into the nation's waters by storm sewers.

Storm sewers drain rainwater and melted snow from developed areas into water bodies that can handle the excess flow. Draining stormwater picks up a variety of contaminants as it filters through soil and over pavement on its way to sewers. Sewers are also used on occasion as an easy (if illicit) means for the direct discharge of unwanted contaminants. Since storm sewer

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systems generally channel collected runoff into federally protected water bodies, they are subject to the controls of the Clean Water Act. In October of 1999, after thirteen years in process, the Environmental Protection Agency ("EPA") promulgated a final administrative rule (the "Phase II Rule"1 or "the Rule") under § 402(p) of the Clean Water Act, 33 U.S.C. § 1342(p), mandating that discharges from small municipal separate storm sewer systems and from construction sites between one and five acres in size be subject to the permitting requirements of the National Pollutant Discharge Elimination System ("NPDES"), 33 U.S.C. §§ 1311(a), 1342. EPA preserved authority to regulate other harmful stormwater discharges in the future.

In the three cases consolidated here, petitioners and intervenors challenge the Phase II Rule on twenty-two constitutional, statutory, and procedural grounds. We remand three aspects of the Rule concerning the issuance of notices of intent under the Rule's general permitting scheme. We affirm the Rule against all other challenges.

I.
BACKGROUND

A. The Problem of Stormwater Runoff

Stormwater runoff is one of the most significant sources of water pollution in the nation, at times "comparable to, if not greater than, contamination from industrial and sewage sources."2 Storm sewer waters carry suspended metals, sediments, algae-promoting nutrients (nitrogen and phosphorus), floatable trash, used motor oil, raw sewage, pesticides, and other toxic contaminants into streams, rivers, lakes, and estuaries across the United States.3 In 1985, three-quarters of the States cited urban stormwater runoff as a major cause of waterbody impairment, and forty percent reported construction site runoff as a major cause of impairment.4 Urban runoff has been named as the foremost cause of impairment of surveyed ocean waters.5 Among the sources of stormwater contamination are urban development, industrial facilities, construction sites, and illicit discharges and connections to storm sewer systems.6

B. Stormwater and the Clean Water Act

Congress enacted the Clean Water Act in 1948 to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a) (originally codified as the Federal Water Pollution Control Act, 62 Stat. 1155). The Clean Water Act prohibits the discharge of

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pollutants from a "point source"7 into the waters of the United States without a permit issued under the terms of the National Pollutant Discharge Elimination System, 33 U.S.C. §§ 1311(a), 1342, which requires dischargers to comply with technology-based pollution limitations (generally according to the "best available technology economically achievable," or "BAT" standard). 33 U.S.C. § 1311(b)(2)(A). NPDES permits are issued by EPA or by States that have been authorized by EPA to act as NPDES permitting authorities. 33 U.S.C. § 1342(a)-(b). The permitting authority must make copies of all NPDES permits and permit applications available to the public, 33 U.S.C. §§ 1342(j), 1342(b)(3); state permitting authorities must provide EPA notice of each permit application, 33 U.S.C. § 1342(b)(4); and a permitting authority must provide an opportunity for a public hearing before issuing any permit, 33 U.S.C. §§ 1342(a)(1), 1342(b)(3); cf. 33 U.S.C. § 1251(e) (requiring public participation).

Storm sewers are established point sources subject to NPDES permitting requirements. Natural Res. Def. Council v. Costle, 568 F.2d 1369, 1379 (D.C.Cir.1977) (holding unlawful EPA's exemption of stormwater discharges from NPDES permitting requirements); Natural Res. Def. Council, 966 F.2d at 1295.8 In 1987, to better regulate pollution conveyed by stormwater runoff, Congress enacted Clean Water Act § 402(p), 33 U.S.C. § 1342(p), "Municipal and Industrial Stormwater Discharges." Sections 402(p)(2) and 402(p)(3) mandate NPDES permits for stormwater discharges "associated with industrial activity," discharges from large and medium-sized municipal storm sewer systems, and certain other discharges. Section 402(p)(4) sets out a timetable for promulgation of the first of a two-phase overall program of stormwater regulation. Id. at § 1342(p)(2)-(4); Natural Res. Def. Council, 966 F.2d at 1296. In 1990, pursuant to § 402(p)(4), EPA issued the Phase I Rule regulating large discharge sources.9

C. The Phase II Stormwater Rule

In Clean Water Act § 402(p), Congress also directed a second stage of stormwater regulation by ordering EPA to identify and address sources of pollution not covered by the Phase I Rule. Section 402(p)(1) placed a temporary moratorium (expiring in 1994) on the permitting of other stormwater discharges pending the results of studies mandated in § 402(p)(5) to identify the sources and pollutant content of such discharges and to establish procedures and methods to control them as "necessary to

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mitigate impacts on water quality." 33 U.S.C. § 1342(p)(5). Section 402(p)(6) required that EPA establish "a comprehensive program to regulate" these stormwater discharges "to protect water quality," following the studies mandated in § 402(p)(5) and consultation with state and local officials. Id. at § 1342(p)(6).

EPA proposed the Phase II Rule in January of 1998.10 In October, 1999, Congress passed legislation precluding EPA from promulgating the new Rule until EPA submitted an additional report to Congress supporting certain anticipated aspects of the Rule.11 EPA was also required to publish its report in the Federal Register for public comment. Pub.L. No. 106-74, § 431(c), 113 Stat. at 1097. Later that month, EPA submitted the required ("Appropriations Act") study and promulgated the Rule.12

Under the Phase II Rule, NPDES permits are required for discharges from small municipal separate storm sewer systems ("small MS4s") and stormwater discharges from construction activity disturbing between one and five acres ("small construction sites"). 40 C.F.R. §§ 122.26(a)(9)(i)(A)-(B). Small MS4s may seek permission to discharge by submitting an individualized set of best-management plans in six specified categories, id. at § 122.34, either in the form of an individual permit application, or in the form of a notice of intent to comply with a general permit. Id. at § 122.33(b). Small MS4s may also seek permission to discharge through an alternative process, under which a permit may be sought without requiring the operator to regulate third parties, id. at §§ 122.33(b)(2)(ii), 122.26(d).13 Small construction sites may apply for individual NPDES permits or seek coverage under a promulgated general permit. Id. at § 122.26(c). EPA also preserved authority to regulate other categories of harmful stormwater discharges on a regional, as-needed basis. Id. at § 122.26(a)(9)(i)(C)-(D).

D. Facial Challenges to the Phase II Rule

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  • Environmental Defense Center, Inc. v. U.S. E.P.A., No. 00-70014.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 15, 2003
    ...Partial Dissent by Judge Tallman. ORDER AND OPINION ORDER The opinion and dissent filed in this case on January 14, 2003, and published at 319 F.3d 398 are vacated. They are replaced by the Opinion and Dissent filed With the filing of the new Opinion and Dissent, the panel has voted to deny......
  • Environment. Orotect, Info. Ctr. v. Pacific Lumber, No. C 01-2821 MHP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • June 6, 2003
    ...(Dec. 8,1999). Once again, the regulations were mostly upheld by the Ninth Circuit against challenges. Environmental Def. Ctr. v. EPA 319 F.3d 398, 405 (9th D. Proposed Amendment to Silviculture Regulation In 1999, EPA proposed revising the 1976 silviculture regulation in order to "modify [......
  • City of Abilene v. U.S. E.P.A., No. 01-60894.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 2, 2003
    ...Amendment challenge to the EPA's permitting regulations for storm water discharges from small MS4s. Environmental Def. Ctr., Inc. v. EPA, 319 F.3d 398 (9th Cir.2003). Those regulations impose a variety of conditions on permittees, requiring them to, inter alia, "prohibit non-stormwater disc......
  • Citizens for Honesty & Integrity v. San Diego Cty., Civ. No. 02 CV 1855 B(RBB).
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • April 15, 2003
    ...choices of unconsenting States. Many Circuits have reached this conclusion. See, e.g., Environmental Defense Center, Inc. v. U.S. E.P.A, 319 F.3d 398, 412-413 (9th Cir. 2003) ("Under the spending power, Congress may seek to influence a State's policy choices by attaching conditions on the r......
4 cases
  • Environmental Defense Center, Inc. v. U.S. E.P.A., No. 00-70014.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 15, 2003
    ...Partial Dissent by Judge Tallman. ORDER AND OPINION ORDER The opinion and dissent filed in this case on January 14, 2003, and published at 319 F.3d 398 are vacated. They are replaced by the Opinion and Dissent filed With the filing of the new Opinion and Dissent, the panel has voted to deny......
  • Environment. Orotect, Info. Ctr. v. Pacific Lumber, No. C 01-2821 MHP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • June 6, 2003
    ...(Dec. 8,1999). Once again, the regulations were mostly upheld by the Ninth Circuit against challenges. Environmental Def. Ctr. v. EPA 319 F.3d 398, 405 (9th D. Proposed Amendment to Silviculture Regulation In 1999, EPA proposed revising the 1976 silviculture regulation in order to "modify [......
  • City of Abilene v. U.S. E.P.A., No. 01-60894.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 2, 2003
    ...Amendment challenge to the EPA's permitting regulations for storm water discharges from small MS4s. Environmental Def. Ctr., Inc. v. EPA, 319 F.3d 398 (9th Cir.2003). Those regulations impose a variety of conditions on permittees, requiring them to, inter alia, "prohibit non-stormwater disc......
  • Citizens for Honesty & Integrity v. San Diego Cty., Civ. No. 02 CV 1855 B(RBB).
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • April 15, 2003
    ...choices of unconsenting States. Many Circuits have reached this conclusion. See, e.g., Environmental Defense Center, Inc. v. U.S. E.P.A, 319 F.3d 398, 412-413 (9th Cir. 2003) ("Under the spending power, Congress may seek to influence a State's policy choices by attaching conditions on the r......

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