Stormwater Issues Heat Up as NACWA Provides National Update

(October 16, 2019) – NACWA provided an update on national stormwater trends last week at the Southeast Stormwater Association’s (SESWA) annual regional conference in Chattanooga, TN. The two-day event brought together more than 250 stormwater professionals from across the southeast to discuss topics from developments in stormwater management to funding and financing challenges. NACWA appreciates the opportunity to participate in SESWA’s annual meeting and the continued engagement with the regional Association and its members.

Also developing last week in Oregon, a much-anticipated Circuit Court order was handed down relating to the MS4 Phase II General Permit litigation that was challenged earlier this year by several municipalities and NACWA members in the state. Unfortunately, the Court agreed with Oregon Department of Environmental Protection (DEQ) on all issues and dismissed claims made by the MS4 communities.

Because of the way the permit is written, the court found there is a presumption of compliance until DEQ determines that a permittee’s “discharge is causing or contributing to an excursion of an applicable water quality standard,” which then requires notification to DEQ within 30 days. Specifically, the Court determined that since there are no facts yet to show impracticality, the condition is permissible.

The Court also made a very unfortunately finding related to the “maximum extent practicable” standard, relying on the 2016 Remand Rule to reason that MEP is actually a “caveat” that is “not appropriate―or allowed—under the Clean Water Act because it ‘creates uncertainty as to what specific actions the permittee is expected to take, and is therefore difficult to comply with and assess compliance.’” The court is clearly wrong in this understanding of what MEP actually is.   

NACWA has been following the development of the Phase II permit in Oregon and provided DEQ with written comments on the draft in February 2018. NACWA is reviewing the Court’s opinion and discussing option with its Oregon members, and will keep members updated on any new developments or next steps.   Members with any questions can contact Emily Remmel, NACWA’s Director of Regulatory Affairs.