Runoff Pollution Rules for Small Cities Upheld
Source: 
San Francisco Chronicle

A federal appeals court upheld rules requiring the nation's small cities and counties to protect waterways from storm water pollution.
The U.S. Court of Appeals in San Francisco, which heard the nationwide case, also said the Environmental Protection Agency must strengthen its rules by requiring public hearings and state review of the local plans to make sure they work.
The EPA rules, adopted by the Clinton administration in 1999, apply to sewer systems operated by cities and counties with fewer than 100,000 people, and to runoff from construction sites of one to five acres.
Rules for larger cities and construction sites, and for runoff from industrial sites, took effect in 1990. Small cities in populous counties were allowed to choose which set of rules applied to them.
Local governments must submit plans by March to reduce pollution caused by runoff from construction, development and local roads, and to educate the public on the ways that everyday activities like pesticide and fertilizer use affect storm water pollution.
"This is very good news for everyone who uses the waters, for surfers, for boaters and for fishers," said Nancy Stoner, a lawyer with the Natural Resources Defense Council. She said storm water is the largest source of pollution in U.S. coastal waters and the largest source of bacteria that cause beach closures.
"There's a lot more small cities than large cities, so this will have a huge impact, particularly if they follow the rules and require pollutants to be reduced to the maximum extent practicable," Stoner said.
A lawyer for municipal water agencies said the federal rules violate local governments' constitutional autonomy. By requiring municipalities to limit pollution from local developments and construction sites into sewer systems that empty into navigable waterways, "the EPA was telling us pretty much how we had to regulate," said Sydney Falk, who represented the Texas Counties Storm Water Coalition. He said his client may appeal.
The court ruled 2-1 that local governments were not being coerced into adopting federal regulations. The EPA rules give municipalities a choice, the court said. They can take specific steps to limit runoff, such as requiring construction companies to control erosion; or they can adopt their own measures, such as building and preserving wetlands, to keep local discharges out of rivers and oceans.
Local agencies will not have to install expensive wastewater treatment equipment, but can adopt less expensive, low-tech solutions, such as phasing in development and requiring reseeding after development to limit erosion, said Stoner of the Natural Resources Defense Council.
The court also rejected arguments by the National Association of Home Builders that runoff from small construction sites does not affect water quality enough to justify regulation.
The only flaw the court found in the EPA rules was a provision allowing local agencies to decide for themselves whether their plans took all practical steps to reduce pollution. The federal Clean Water Act requires public hearings and state agency review of the plans, the court said.

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