MUNICIPAL STORMWATER: THE NEW CLEAN WATER ACT BATTLEGROUND

Introduction – the Changing Landscape Municipal storm water programs have expanded greatly in recent years. Thousands of smaller “Phase II” communities are now covered by the municipal storm water program and the program has evolved from both a regulatory and technical perspective. Many local governments now subject to MS4 storm water permits are getting their first experience of being regulated under the Clean Water Act NPDES permitting program.Municipal storm water managers nationwide have developed programs premised upon the implementation of best management practices (BMPs) to control storm water.As the program has grown, so have the legal issues surrounding the program. With the continued emergence of the TMDL program under the Clean Water Act, we are on the verge of a dramatic change in the focus of our storm water control efforts. Rather than relying on BMPs states, EPA, and citizen groups now increasingly seek to impose numeric concentration limits on municipal storm water discharges, especially to waters listed as impaired under the TMDL program. The implications for communities nationwide in terms of pollution control costs, growth management, and land-use planning are monumental.There are increasingly complex legal and regulatory issues regarding what authority EPA and the states have to regulate municipal storm water discharges and how to exercise that authority consistent with good public policy. Beyond trying to understand the legal/regulatory requirements and to comply with their NPDES permits, municipalities are facing attacks and demands relating to storm water management from their residents and from outside interests. Increasingly, special interest groups are seizing on the storm water program as a tool to impose their views about community development and municipal wet weather infrastructure requirements.Municipal storm water issues have now become a leading battleground within the Clean Water Act. This paper will discuss some of these emerging issues with particular emphasis on how these changes will impact municipal storm water control programs and requirements.