Metropolitan News-Enterprise


Wednesday, January 15, 2003


Page 1


Court Rejects Attack by Builders, Cities on EPA Runoff Rules


From Staff and Wire Service Reports


The Ninth U.S. Circuit Court of Appeals yesterday upheld Environmental Protection Agency rules requiring construction sites one to five acres in size to limit pollution runoff from their projects.

The ruling by a split panel upholds 1999 EPA standards to combat runoff pollution, one of the nation’s most significant sources of water contamination.

Larger sites already are covered under other provisions of the rule limiting storm-sewer pollution.

“They have to reduce pollutants to the maximum extent possible,” said Victoria Clark, an attorney for the Santa Barbara-based Environmental Defense Center, which sued the EPA to make the nationwide rules even more stringent.

One challenge to the Clinton-era rules was from the National Association of Home Builders, which disputed that small-scale construction sites contribute to water pollution. The group said the rules, to be implemented later this year, were an unnecessary and financial burden.

“We believe, in fact, small construction facilities are not associated with water quality impacts that Congress intended to regulate,” said home association attorney Ellen Steen. “But the court rejected that argument.”

Substantial Deference

Senior Judge James Browning, writing for the court, said the EPA’s technical assessment was entitled to substantial deference. The agency concluded that storm sewers carry suspended metals, sediment, algae-promoting nutrients, trash, motor oil, raw sewage, pesticides and other toxic contaminates into streams, rivers, lakes and estuaries across the United States, and that runoff from small construction sites was a serious part of the problem.

“In 1985, three-quarters of the states cited urban stormwater runoff as a major cause of waterbody impairment, and 40 percent reported construction site runoff as a major cause of impairment,” Browning noted.

The EPA first proposed the rules in 1998. The were temporarily blocked by Congress, which passed an appropriations rider precluding the agency from putting the rules into effect until it completed a study dealing with specific issues and solicited public comment on the rules.

The EPA took final action to promulgate the rules in October 1999, but the American Forest & Paper Association and the National Association of Home Builders brought challenges.

Also challenged was a rule demanding local governments in communities of 100,000 people or fewer try to limit runoff as well. Larger cities already face that requirement.

Separate actions filed in the Fifth Circuit and the District of Columbia Circuit—challenges to EPA rules implementing the Clean Water Act are filed directly in the courts of appeals—were consolidated with the Ninth Circuit case.

Comments Ignored

The challengers complained that, among other things, the EPA went beyond the scope of the congressionally mandated study and ignored many of their comments. Browning concluded, however, that Congress did not intend to preclude the agency from considering other evidence, and that the public-comment requirement did not compel the agency to grant the objectors the changes they desired.

For construction sites, the decision means contractors will have to undertake a variety of measures to limit runoff during the building phase. Among other things, that could mean placing hay bails around storm drains, fencing or covering large piles of dirt or other sediment, and sandbagging to control sediment. Phasing in development could be another requirement.

The rule on runoff from small municipal separate storm sewer systems—MS4s in environmental law lingo—requires that governments create outreach programs to educate the public that it should not dump pollutants down storm drains. Cities might also have to write and enforce laws punishing such offenders.

A coalition of 100 small Texas cities challenged those requirements, arguing the federal government was violating the Tenth Amendment by overstepping its boundaries into municipal affairs. They also argued that the outreach requirement compels them to deliver a political message, in violation of the First Amendment.

“What’s the point of having local governments if the federal government tells them what to legislate,” said Clarence Joe Freeland, an attorney with the Texas Cities Coalition on Stormwater, which includes the cities of McAllen and Longview.

Browning rejected those arguments. The rule does not infringe on local sovereignty, he said, “because it directs no unconstitutional coercion” but merely “extends to small MS4s a generally applicable regulatory scheme that does not excessively interfere with municipal functions.”

Nor does it violate the local governments’ right to free speech, the jurist said, because pollution control is non-ideological.

Not only did the panel reject the cities’ and counties’ challenge, it gave the EDC and the Natural Resources Defense Council a partial victory by remanding to the EPA for reconsideration of certain aspects of the rule. The agency failed to provide for adequate EPA oversight of local governments’ plans, and to provide for the same time of public notice and comment required in other Clean Water Act matters, Browning said.

Judge Stephen Reinhardt concurred in the opinion, but Judge Richard C. Tallman dissented in part.

The mandate imposed on local governments, Tallman wrote, “infringes upon state

sovereignty by compelling the states to enact and administer a federal regulatory program that includes regulation of third parties.” The jurist also disagreed with respect to the environmental groups’ challenge, saying the EPA’s approaches to oversight and public participation were consistent with congressional intent.

The case is Environmental Defense Center, Inc. v. United States Environmental Protection Agency, 00-70014.


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