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Supreme Court Throws Out Stormwater Case

A lawsuit thrown out this week by the US Supreme Court, and a separate settlement between the EPA and several home builder industry groups, have demonstrated the challenge of regulating polluted stormwater that makes its way into rivers, streams and oceans. The settlement was the second setback for the EPA’s stormwater regulations in just one week.

The US Supreme Court on Tuesday reversed a decision by the 9th Circuit Court of Appeals, which last year ruled that Los Angeles County was liable for violating the Clean Water Act, the Los Angeles Times reported.

The Natural Resources Defense Council and Los Angeles Waterkeeper filed the lawsuit in 2008 against the county’s Flood Control District for allegedly violating its water-quality permit. The environmental groups were aiming to hold the district responsible for stormwater runoff that flowed into the Los Angeles and San Gabriel rivers after heavy rains.

The Supreme Court’s decision resolves a legal issue, determining that water flowing from one concrete section of the river to another section cannot be deemed a discharge of pollutants. However, the court did not excuse the county from liability for ongoing water pollution in the Los Angeles and San Gabriel rivers, the NRDC said.

In a separate case, the EPA has reached an agreement with the Wisconsin Builders Association, the National Association of Home Builders and the Utility Water Act Group over litigation brought by the industry groups. The lawsuit challenged the federal agency’s final regulations on stormwater runoff from construction sites.

Under the settlement, the EPA has agreed to propose to withdraw the numeric limitation it set to control stormwater runoff from construction sites, and amend several of the non-numeric/best management practice requirements.

The EPA suffered another legal setback earlier this week when a US District judge in Virginia ruled the federal agency overstepped its authority by trying to regulate stormwater runoff into a Fairfax County, Va., creek. The judge sided with the state’s Department of Transportation and the Fairfax County Board of Supervisors in its ruling that stormwater runoff is not a pollutant.

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One thought on “Supreme Court Throws Out Stormwater Case

  1. I don’t know the specific details of the case in Fairfax, but this ruling concerns me, as do all rulings that are not scientifically based. Stormwater in and of itself is not a pollutant, but it typically carries pollutants. And, depending on the increase in quantity of stormwater resulting from the amount of impervious surfaces, the VOLUME of the stormwater can be quite destructive to the physical stability of the rivershed, and the increase in erosion can generate a release of pollutants via increase in sediment load. Besides sediment being an effective transport mechanism for other pollutants (it works as a carrier, almost like a vector), the increased sediment load then makes the water function like a liquid sandpaper, increasing the erosion and sedimentation downstream. Since the sediment effectively transports any hydrocarbons, nutrients etc, when it discharges into (in this case) Chesapeake Bay, It becomes part of the story of degrading water quality. Not that it should matter, but this can and will affect property values. So this ruling is very disconcerting to me.

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