Opposition Brief — Texas Cities Coalition on Stormwater v. Environmental Protection Agency

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Supreme Court, U.S. “|

FILED

(3) MAY 7 - 2004

No. 03-1125 OFFICE OF THE CLERK

In the

Supreme Court of the Anited States

TEXAS CITIES COALITION ON STORMWATER,

Petitioner,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY and NATURAL RESOURCES DEFENSE

COUNCIL, INC.

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF IN OPPOSITION OF RESPONDENT

NATURAL RESOURCES DEFENSE

COUNCIL, INC.

ANDREW G. FRANK

Counsel of Record

GAINES GWATHMEY III

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, NY 10019-6064

(212) 373-3000

Attorneys for Respondent Natural

Resources Defense Council, Inc.

GUEST AVAILABLE COP

NANCY K. STONER

NATURAL RESOURCES DEFENSE

COUNCIL, INC.

1200 New York Avenue, N.W.

Washington, D.C. 20005

(202) 289-6868

Attorney for Respondent Natural

Resources Defense Council, Inc.

Road

;

QUESTIONS PRESENTED

The Environmental Protection Agency (EPA) promul-

gated the Phase II stormwater rule to regulate pollutant dis-

charges from certain small municipal separate storm sewer sys-

tems (MS4s). The rule gives the MS4 operator a choice between

two compliance options. Under one option, the MS4 has the

freedom to design its own pollution reduction program by se-

lecting control activities within six broad categories, but must

enact certain ordinances or other regulatory mechanisms. Un-

der the alternative, the MS4 may obtain an individual permit

that does not require the MS4 operator to regulate third parties.

In the past, EPA has offered such alternative permits to MS4s

under the authority of the same regulations that now serve as

the basis for the alternative compliance option under the

Phase II rule. |

The questions presented are:

1. Whether the court of appeals correctly found

that the Phase II rule does not violate the Tenth Amendment

because the rule does in fact provide MS4s with a compliance

alternative that does not require regulation of third parties.

r Whether the court of appeals correctly held that

the canon of construction requiring a clear statement of con-

gressional intent when statutory interpretations raise signifi-

cant federalism questions does not invalidate the Phase II rule,

because the canon does not apply when there is no serious con-

stitutional issue, and EPA’s inclusion of the alternative permit

option removes any doubt as to whether the rule violates the

Tenth Amendment.

LIST OF PARTIES

Petitioner is the Texas Cities Coalition on Stormwater

(Texas Cities). The Texas Counties Storm Water Coalition

(Texas Counties) also filed a petition for review of the Phase II

rule and filed joint briefs with the Texas Cities in the court of

appeals. For the purpose of the proceedings before this Court,

the Texas Counties wish to remain a party and have adopted

the position of the Texas Cities, but will not file separate pa-

pers. Respondents are EPA and the respondent-intervenor in

the court of appeals, the Natural Resources Defense Council,

Inc. (NRDC).

The Environmental Defense Center, the American For-

est & Paper Association and the National Association of Home

Builders filed petitions for review of the Phase II rule on issues

different from those presented in this petition for writ of certio-

rari. Those three entities did not intervene in the Texas Cities’

petition for review and are therefore not parties to these pro-

ceedings.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, NRDC states that

it is a New York nonprofit corporation that has no parent cor-

poration. It further states that no publicly held company owns

any of its stock.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED wo ecscssccccseeseseeeeeeoce sliethteabeied i

Ree Ce PTI onsennrierssssncinininioeicenaemnanadactaie Ee ii

CORPORATE DISCLOSURE STATEMENT .eecccccccccessssosecc. ii

TABLE OF ALITEIOME IIIB os ccsscsccecesissrioussistestuntuadsen eur Vv

Se OIE cccscsrsiinicieenirnnasinhatial aaa 1

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED.................... 2

STATEMENT OF THE CASE, ...csscscssscsssecssteisovsssbossosesseeecssesese... 2

A. Stormwater Pollution and the Stormwater

Provision of the Clean Water Act -

an eT tek 2

Tie FET Re iiiscsictnhiinineicaaet eae 4

C. The Fifth Circuit's Decision in City of Abilene .............. 5

DD. Tie Pai UW ssssiisivisnnsismnnincmientrencee 7

E. The Court of Appeals’ Decision in This Case ............ 9

REASONS FOR DENYING THE PETITION......................... 11

THERE ARE NO GROUNDS FOR FURTHER

REVIEW OF THE COURT OF APPEALS’

FINDING THAT THE PHASE II RULE DOES

NOT VIOLATE THE TENTH AMENDMENT

BECAUSE THE RULE PROVIDESA

COMPLIANCE ALTERNATIVE THAT DOES

NOT REQUIRE MS4 OPERATORS TO

REGULATE THIRD PARTIESG............ccccccssscsossscsesseseosecsesees 12

THERE ARE NO GROUNDS FOR FURTHER

REVIEW OF THE COURT OF APPEALS’ :

HOLDING THAT THE PHASE II RULE IS

CONSISTENT WITH THE CLEAR STATEMENT

CANON OF CONSTRUCTION THAT GOVERNS

WHEN A STATUTORY INTERPRETATION

RAISES SERIOUS FEDERALISM QUESTIONG............... 15

A. The Court of Appeals Applied the Same

Authority - SWWANCC - that the Texas Cities

Assert This Court Should Apply and Correctly

Held That the Phase II Rule Is Fully Consistent

with the Clear Statement Canon............cccccseessesseseseeees 16

B. Because the Texas Cities Did Not Previously

Argue That EPA Had a Duty to Provide

Additional Information About the Alternative

Permit Option, This Argument Is Not

Property Debeie TH Cte. ac csssnscnsssecasnenssonessonnnnnssontone 20

CI AI i cisisesesennicceneoiumnnneniiiiniaenaemamanaamnaaiaeae 21

APPENDICES

4D CER. § 122 DOE) (UD) ouersoviccsnissnsnsicsncnsstnsncionisaes App. 1

40 C.F.R. § 122.33(b)(2) (excerpts) ..ssssssssssssssssssssssssssssssen App. 11

TABLE OF AUTHORITIES

Page

CASES

Chevron, U.S.A., Inc. v. NRDC,

IP RI wtrsnstvsce rerhclbhabersdshsnarsonaces ced. 6, 10, 16

City of Abilene v. EPA,

325 F.3d 657 (5th Cir. i 5, 6, 7, 16, 17

College Savings Bank v. Florida Prepaid Postsecondary

Educ. Expense Bd.,527 US. 666 ID eecticinisaterienntianads 20

Environmental Defense Center v. EPA,

319 F.3d 398 (9th Cir. ny 2,9

Environmental Defense Center v. EPA,

344 F.3d 832 (9th Cir. i, _ NT TD passim

Garcia v. San Antonio Metropolitan Transit Authority,

469 US. S2B (1985) ......ssssersssesssssssrsnsssessttsecsesoeseccc. 19

NRDC v. Costle, 568 F.2d 1369 (DIC. Cit. 1977) ..sccsccccroesssncencee. 3

New York v. United States, 505 US. cl cg 6, 10, 18

Pennhurst St. Sch. & Hosp. v. Haldermann,

We i BE sittin norsctsicrnewigniubssieieccscccncc ona. 20

Pennsylvania Dep’t of Corrections v. Yeskey,

sashes ie ci: TE 20

Page

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers,

531 U.S. 159 (2001) ........cccsssscssesssesseesereneeeees 5, 16, 17, 18

South Dakota v. Dole,

483 U.S. 203 (1987) ......cccecsssessseseseeeeteneresnessssnsseeceeseeeneens 20

Thomas Jefferson Univ. v. Shalala,

512 U.S. 504, 512 (1994) .....cecccceresesreeeseeneeensessseeensenens 15

STATUTES

Clean Water Act,

BS U.S.C. § 1342 ...ccresccccrrescsscerersrsecsecceccsseasscssnsoesensccsensenees 3

33 U.S.C. § 1342(p) .....cecccecssesseseneseeeseensnenersesssneneneeeneees a3

33 U.S.C. § 1342(p)(3).....cessccssseeseeeesseesenseseessseseseneneneneens 5

33 U.S.C. § 1342(p)(3)(B)(ii).......-.essesesesesesesseeseetesenenenens 18

33 U.S.C. § 1342(p)(3)(B) (iii) ..........-seseeseeeseeeeseseeeeeneecens 18

33 U.S.C. § 1342(p)(4).....ccscccceseseeesssseeneneneansnecsesesnsnenenenees 4

33 U.S.C. § 1342(p)(4)(A) ....secceceeesseeeeeeneneseeesnssnsnenenees 14

33 U.S.C. § 1342(p)(4)(B) ....-.cececsseeseeeeneseseensensnenenenens 14

33 U.S.C. § 1342(p)(6).......scccccesecsssecesesenenessesensnsssseseeees 4,7

33 U.S.C. §1362(14),......ccccccrscccscssscserscsssesncesesnsscnsnceesecees 3

Congressional Review Act of 1996,

SUG, BORG nsccssesnccensnceciescececasseseeeenenssecs 19

I CI rset 19

i ae nT EEN A 19

Department of Veterans Affairs and Housing and Ur-

ban Development and Independent Agencies

Appropriation Act of 2000, Pub. L. 106-74

§ 431, 113 Stat. 1047 (1999) ......cccccccccsssccsseccscessssssssseee 19

REGULATIONS

ig Lt | See mE 2,4,14

40 C.F.R. § 122.26(d)(2)(iv)(B)(1) ......esccccccccssssssssssssssssssseseeeeccecece 4

40 C.F.R. § 122.26(d)(2)(Viii) ....sssesssssssssssssssssssssssssssssseesee 4,14,15

A ria iilarttrt ee 2

pe Bo. | ee 2, 8,15

ahi i. AD RPC OE SC RT 2

AO CFR. § 122. DA(D) (SRY) nanan nancccccsccccccenccrcorcenerseseeoeeeeecs .

40 C.F.R. § 122.34(b)(4)(ii)(A) ....ccsssssssssssssssssssssssssssssssssssssseeeeeee s

40 C.F.R. § 122.34(b)(5)(ii)(B) ....sesesecccecccsccccccccccsssssssssssssssssssccseec .

ein ci ok, ME NARI LAURER ED SE 2

Vil

ADMINISTRATIVE PUBLICATIONS

National Pollutant Discharge Elimination System Permit

Application Regulations for Stormwater Dis-

charges, 55 Fed. Reg. 47990 (Nov. 16, 1990).........s:s:ss000 4

National Pollutant Discharge Elimination System - Regu-

lations for Revision of the Water Pollution Control

Program Addressing Storm Water Discharges;

Final Rule, 64 Fed. Reg. 68722 (Dec. 8, 1999)...2, 3, 7, 13

Viii

In the

Supreme Court of the United States

TEXAS CITIES COALITION ON STORMWATER,

Petitioner,

Vv.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY and

NATURAL RESOURCES DEFENSE COUNCIL, INC.

Respondents.

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NRDC respectfully requests that the Court deny the pe-

tition for a writ of certiorari to review the September 15, 2003,

judgment of the United States Court of Appeals for the Ninth

Circuit.

OPINIONS BELOW

The final opinion below is Environmental Defense Center

v. EPA, 344 F.3d 832 (9th Cir. 2003). App. 1-92.1 In issuing the

final opinion, the Ninth Circuit vacated its initial opinion, re-

1 Citations to” App.” refer to the Appendix to the Texas Cities’ peti-

tion for writ of certiorari.

ported as Environmental Defense Center v. EPA, 319 F.3d 398 (9th

Cir. 2003).

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED

The Tenth Amendment to the United States Constitu-

tion provides as follows: “The powers not delegated to the

United States by the Constitution, nor prohibited by it to the -

States, are reserved to the States respectively, or to the people.”

The relevant provision of the Clean Water Act (CWA),

section 402(p), 33 U.S.C. § 1342(p), is reproduced at App. 93-97.

The Phase II rule and its preamble were published at 64 Fed.

Reg. 68722-68852. App. 98-166 (excerpts). The rule itself is

codified at various sections of 40 C.F.R. parts 9, 122, 123 and

124. See App. 167-81 (setting forth certain provisions of the

rule, including 40 C.F.R. §§ 122.30, 122.34 and 122.36); NRDC

App. 11-12 (setting forth excerpts from 40 CFR.

§ 122.33(b)(2)(ii))?. Certain relevant provisions of EPA’s Phase I

stormwater rule are incorporated by reference in the Phase II

rule. See NRDC App. 1-11 (setting forth excerpts from 40

C.F.R. § 122.26(d)).

STATEMENT OF THE CASE

A. Stormwater Pollution and the Stormwater Provision

of the Clean Water Act - Section 402(p)

Urban stormwater discharges are a leading cause of wa-

ter pollution. Uncontrolled discharges of polluted stormwater

2 Citations to “NRDC App.” refer to the Appendix to this brief.

from MS4s convey metals, pathogens, toxins, sediment, nutri-

ents, trash and other pollutants to the waters of the United

States. National Pollutant Discharge Elimination System - Regula-

tions for Revision of the Water Pollution Control Program Address-

ing Storm Water Discharges; Final Rule, 64 Fed. Reg. 68722, 68744

(Dec. 8, 1999) (hereinafter Phase II Pream. & R.).

The cornerstone of the nation’s water pollution control

efforts is the National Pollutant Discharge Elimination System

(NPDES) established under section 402 of the Clean Water Act,

33 U.S.C. § 1342. Under the NPDES regime, it is unlawful to

discharge pollutants to the waters of the United States from a

point source? without authorization to do so pursuant to a

permit that sets conditions on the discharges.

Since the enactment of the Clean Water Act in 1972,

most NPDES permits have relied on numeric effluent limits as

the conditions that must be met to render the discharges lawful.

Numeric effluent limits are quantitative “end of pipe” restric-

tions on the amounts or concentrations of pollutants that may

be discharged.

In 1977, the District of Columbia Circuit held that storm

sewers were point sources that EPA could not exempt from

NPDES permitting requirements. NRDC v. Costle, 568 F.2d

1369, 1377, 1379 (D.C. Cir. 1977). EPA subsequently attempted

to promulgate stormwater regulations in the 1970s and 1980s.

In 1987, Congress enacted section 402(p) of the Clean

Water Act, 33 U.S.C. § 1342(p), App. 93-97. Among other

things, that statute created a two-phase regulatory program for

3 The Clean Water Act defines a point source as “any discernible,

confined and discrete conveyance . . . from which pollutants are or may be

discharged.” 33 U.S.C. § 1362(14).

stormwater discharges. Section 402(p)(4) required that EPA

establish regulations setting forth permit application require-

ments for stormwater discharges from large and medium MS4s,

that is, MS4s serving populations of 100,000 persons or greater.

33 U.S.C. § 1342(p)(4), App. 95-96. Section 402(p)(6), in turn,

required EPA to designate additional sources of stormwater

pollution for regulation and to establish a comprehensive pollu-

tion control program for the designated sources. 33 U.S.C.

§ 1342(p)(6), App. 97.

B. The Phase I Rule

In 1990, EPA promulgated regulations under section

402(p)(4) for large and medium MS4s. Those regulations be-

came known as the Phase I rule.4 Consistent with the statute,

the Phase I rule sets out permit application requirements for

those MS4s. 40 C.F.R. § 122.26(d). Among the information that

the Phase I rule requires in those permit applications is descrip-

tion of “a program. .. to implement and enforce an ordinance,

orders or similar means to prevent illicit discharges to the

[MS4].” 40 C.F.R. § 122.26(d)(2)(iv)(B)(1), NRDC App. 7. How-

ever, the rule also provides that the permitting authority can

excuse an MS4 from certain of the application requirements,

including the requirement that the MS4 describe its program to

implement and enforce an illicit discharge ordinance, if the re-

quirement is not “practicable” or “applicable.” 40 C.F.R.

§ 122.26(d)(2)(viii), NRDC App. 10.

4 National Pollutant Discharge Elimination System Permit Application

Regulations for Stormwater Discharges, 55 Fed. Reg. 47,990 (Nov. 16, 1990) (codi-

fied at various sections of 40 C.F.R. pts. 122-124).

C. The Fifth Circuit’s Decision in City of Abilene

Since promulgation of the Phase I rule, EPA and other

permitting authorities have issued Phase I permits to large and

medium MS4s. In City of Abilene v. EPA, 325 F.3d 657 (5th Cir.

2003), reh’g en banc denied, 71 Fed. Appx. 443 (5th Cir. 2003), a

unanimous panel of the Fifth Circuit upheld EPA-issued

Phase I MS4 permits against two as-applied challenges. The

first challenge was based on the canon of construction requiring

a clear statement of congressional intent when a statutory in-

terpretation raises serious federalism questions, as set out in

Solid Waste Agency of Northern Cook County v. United States Army

Corps of Engineers, 531 U.S. 159 (2001) (hereinafter SWANCC).

The second challenge was based on the Tenth Amendment.

In City of Abilene, EPA had offered the plaintiffs, two

Texas cities, a choice between (1) permits that would have re-

quired the cities to implement and enforce ordinances or other

programs to prevent the discharge of pollutants into their

MS4s, and (2) permits containing numeric effluent limits. Id. at

660. The cities chose permits of the first type rather than nu-

meric effluent limit permits. Upon issuance of the permits, the

cities sought administrative ana judicial review. The cities con-

tended that the Clean Water Act did not provide sufficiently

clear authority to allow EPA to require an MS4 operator to

regulate third parties, and that such regulation of third parties

“invoke[d] the outer limits of [federal] power,” so that the per-

mits violated the SWANCC clear statement canon of construc-

tion. Id. :

In denying that challenge, the Fifth Circuit quoted sec-

tion 402(p)(3) of the Clean Waiter Act, 33 U.S.C. § 1342(p)(3),

which requires that MS4 permits include “a requirement to ef-

féctively prohibit non-stormwater discharges into the storm

sewers’ and “controls to reduce the discharge of pollutants to

the maximum extent practicable, including management prac-

tices, control techniques and system, design and engineering

methods, and such other provisions as the Administrator or the

State [permitting authority] determines appropriate for the control of

such pollutants.” Id. at 660-61 (emphasis in original). Based on

this statutory language, the Fifth Circuit concluded that “even

if Chevron deference is not warranted, the challenged permit

conditions are within EPA’s discretion.” Id. at 661 (referencing

Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)).

The Fifth Circuit also rejected the argument that the

permits violated the Tenth Amendment because they required

the cities to regulate third parties. Id. at 661-63. Following New

York v. United States, 505 U.S. 144 (1992), the court stated that

the federal government could encourage states and municipali-

ties to implement a federal regulatory program so long as the

choice to do so or not remained with the state or municipal

government. City of Abilene, 325 F.3d at 662. As a result, the

cities could not “establish a Tenth Amendment violation with-

out demonstrating that they had no other option but to regulate

[third parties] according to federal standards.” Id. The Fifth

Circuit concluded that EPA’s offer of a numeric effluent limit

permit gave the cities that other option:

Like [the statute at issue in Reno v. Condon, 528 U.S. 141

(2000)], the proposed numeric end-of-pipe permits

would not have required the Cities to regulate their

own residents but instead, by requiring the Cities to

meet effluent limitations, would have regulated them in

the same manner as other dischargers of pollutants. Be-

cause the record shows that the Cities voluntarily chose

the management permits over permits that did not re-

quire the Cities to regulate according to federal stan-

dards, the Cities have not been compelled to implement

a federal regulatory scheme. Accordingly, their Tenth

Amendment challenge fails.

Id. at 663.

D. The Phase II Rule

In 1999, EPA promulgated regulations under Clean Wa-

ter Act section 402(p)(6), 33 U.S.C. § 1342(p)(6). Phase II Pream.

&R., 64 Fed. Reg. 68722-852. Those regulations became known

as the Phase II rule. Consistent with the statute, the Phase II

rule designated certain stormwater dischargers for regulation

— including certain small MS4s — and established a compre-

hensive permitting program to regulate them. The preamble to

the rule listed approximately 5,700 cities or counties in “urban-

ized areas” that would be actually or potentially subject to the

rule. Phase II Pream. & R.,-64 Fed. Reg. at 68812-37. Certain

federal facilities are also regulated under the Phase II rule’s

MS4 provisions. Id. at 68749.

The Phase II rule provides two compliance options.

One option gives MS4 operators the freedom to design their

own regulatory program by selecting pollution control activi-

ties from six broad wategories referred to as the minimum

measures.° App. 108 (“each 7 >rrnittee will determine appropri-

ate [management practices] to satisfy each of the six minimum

control measures”). EPA. designed the rule in this way to pro-

vide “maximum flexibility in MS4 permitting” because “MS4s

need . . . flexibility to optimize reductions in storm water pol-

lutants on a location-by-location basis.” App. 107. The six

minimum measure categories are: (1) public education and

outreach on stormwater impacts; (2) public involve-

ment/ participation; (3) illicit discharge detection and elimina-

> In ruling ona separate petition for review of the Phase II rule, the

Ninth Circuit held that the MS4 operators’ choice of pollution control meas-

ures must be reviewed by the permitting authority to ensure that the MS4

pollution control programs meet relevant Statutory standards. App. 37-38.

That issue is not before this Court.

tion; (4) construction site stormwater runoff control; (5) post-

construction stormwater management in new development and

redevelopment; and (6) pollution prevention/ good housekeep-

ing for municipal operations. App. 109-42.

Though the minimum measures approach provides

flexibility, the MS4’s minimum measure pollution control pro-

gram must include certain features. For the illicit discharge,

construction site, and new development and redevelopment

minimum measures, the pollution control program must in-

clude certain ordinances or other regulatory mechanisms.

40C.F.R. §§ 122.34(b)(3)(ii)(B), 122.34(b)(4)(ii)(A) &

122.34(b)(5)(ii)(B), App. 171, 172 & 174.

: _ The alternative to the minimum measures approach un-

der the Phase II rule allows regulated small MS4s to obtain in-

dividual permits under the Phase I rule’s permit application

requirements for large and medium MS4s. App. 152-53. EPA

stated that those individual Phase II permits would “more spe-

cifically focus[ ] on the pollutants” discharged from the regu-

lated MS4s, App. 157, and expressly noted that the permits

could be based on numeric effluent limits. App. 158; see also

App. 158-59 (explaining how appropriate effluent limits might

be determined). EPA indicated that MS4 operators seeking

permission to discharge under the alternative permit option did

not need to submit details about future stormwater program

requirements unless the MS4 operator intended that those fu-

ture program components be considered when developing the

permit conditions. App. 159; see also 40 C.F.R. § 122.33(b)(2)(ii),

NRDC App. 11-12.

EPA added the alternative compliance option in re-

sponse to comments suggesting that the minimum measures

approach might violate the Tenth Amendment by requiring the

operators of MS4s to regulate third parties. App. 153-54. EPA

explained that the minimum measures approach, standing

alone, did not excessively interfere with the functioning of mu-

nicipal governments, and therefore did not violate the Tenth

Amendment. App. 155-57. EPA further noted that, in any

event, providing the alternative permit option resolved any

Tenth Amendment concerns:

Even if the minimum measures approach was constitu-

tionally suspect, a requirement that standing alone

would violate constitutional principles of federalism

does not raise concerns if the entity subject to the re-

quirement may opt for an alternative action that does

not raise a federalism issue.

App. 157.

E. The Court of Appeals’ Decision in This Case

In its September 15, 2003 revised opinion, a unanimous

panel of the Ninth Circuit rejected the Texas Cities’ clear state-

ment and Tenth Amendment challenges to the rule. App. 14-

a2.

° The court of appeals issued its original opinion, in which the entire

panel rejected the clear statement challenge and a majority of the panel re-

jected the Tenth Amendment challenge, on January 14, 2003. Environmental

Defense Center v. EPA, 319 F.3d 398 (9th Cir. 2003). Judge Richard C. Tallman

dissented on the Tenth Amendment point, and on certain other points not

relevant to this petition for writ of certiorari. The Texas Cities and Texas

Counties filed a petition for panel and en banc rehearing on the clear state-

ment and Tenth Amendment issues. On September 15, 2003, the court of ap-

peals denied the Texas Cities’ and Texas Counties’ petition for panel and en

banc rehearing, but issued a revised opinion. While continuing to uphold the

rule against the clear statement and Tenth Amendment challenges, the court

amended its opinion on those two points in the wake of the Fifth Circuit's

City of Abilene decision, which had been issued after the Ninth Circuit's origi-

nal decision in this action. Judge Tallman joined in the revised opinion on the

Tenth Amendment point, making the revised opinion unanimous on both the

On the clear statement issue, as set out in more detail in

section II.A below, the court of appeals ruled that EPA’s statu-

tory interpretations passed muster under the test for adminis-

trative deference set out in Chevron, U.S.A., Inc. v. NRDC, 467

U.S. 837 (1984) as well as under SWANCC.

As for the constitutional issue, the Ninth Circuit, like the

Fifth Circuit in City of Abilene, held that there is no Tenth

Amendment violation when EPA offers MS4s at least one com-

pliance alternative that does not require the state or municipal-

ity to regulate third parties. App. 19 (citing New York v. United

States, 505 U.S. 144, 168 (1992)). Since under the Phase II rule

MS4s may choose either the minimum measures approach or

the alternative permit, the Ninth Circuit concluded that the rule

would not violate the Tenth Amendment so long as the alterna-

tive permit option standing alone did not violate the Tenth

Amendment's federalism guarantees. App. 20.

The court found that the alternative permit option did

not offend Tenth Amendment principles because it did not

compel MS4s to regulate third parties. The court recognized

that the Phase I rule application requirements, which served as

the application requirements under the alternative permit op-

tion, did require an MS4 to provide information concerning

proposed ordinances or other regulatory measures. App. 20.

But the court found that those application requirements did not

“specif[y] the contents of the permit that will result from the

application process.” App. 20. Thus, “nothing in [the Phase I

permit application requirements] will compel the operator of a

small MS4 to implement a federal regulatory program or regu-

late third parties.” App. 21. In further support for its conclu-

clear statement and Tenth Amendment issues. Judge Tallman continued to

dissent on other issues. INo judge of the court of appeals requested a vote on

the petition for en banc rehearing.

sion on this point, the Ninth Circuit noted that EPA had in fact

already offered the Phase I cities at issue in City of Abilene “an

option for obtaining permits that would not have involved...

regulating third parties.” App. 21. The court of appeals con-

cluded that “by presenting the option of seeking a permit under

[the Phase I permit application requirements], the Phase II rule

avoids any unconstitutional coercion.” App. 21-22.

REASONS FOR DENYING THE PETITION

The Texas Cities contend that the Phase II rule violates

the Tenth Amendment because the alternative permit option

requires MS4 operators to regulate third parties. The decision

of the court of appeals creates no conflict of authority or impor-

tant, unresolved question of law on this point, however. Both

the Ninth Circuit, in this case, and the Fifth Circuit, in the City

of Abilene case, have held that there is no Tenth Amendment

violation when EPA provides MS4s with a compliance alterna-

tive that does not require MS4s to regulate third parties. The

Texas Cities do not dispute this principle. Instead, the Texas

Cities simply disagree with the court's finding that the Phase II

rule provides MS4s with such an alternative. However, the

Texas Cities invoke no interpretive principles in support of

their reading of the regulation, and the plain language of the

regulation is contrary to their position.

The Texas Cities also contend that the Phase II rule vio-

lates the clear statement canon of construction that governs

when a statutory interpretation raises serious constitutional

questions concerning the balance of authority between the fed-

eral and state governments. There is, however, no conflict of

authority or important, unresolved question of federal law on

this point either. The court of appeals applied the same deci-

sion of this Court - SWANCC - that the Texas Cities argue that

11 ie

this Court should apply. Because the availability of the alterna-

tive permit option eliminates any purported Tenth Amendment

concern, the court of appeals correctly decided that there was

no serious constitutional question and thus that no clear state-

ment was necessary. Moreover, the canon provides that stat-

utes should be interpreted to avoid constitutional problems.

The court of appeals’ decision to uphold EPA’s interpretation,

which avoids any Tenth Amendment concerns by providing a

compliance alternative that does not require MS4s to regulate

third parties, is thus fully consistent with the canon.

In addition, the Texas Cities now argue, for the first

time in this petition for writ of certiorari, that decisions of this

Court obliged EPA to provide additional information about the

compliance alternatives available to MS4s under the Phase II

rule so that MS4 operators could “voluntarily and knowingly”

choose between the alternatives. Because the Texas Cities never

raised this argument in the proceedings in the court of appeals,

the argument is not properly before this Court. |

THERE ARE NO GROUNDS FOR FURTHER REVIEW OF

THE COURT OF APPEALS’ FINDING THAT THE

PHASE II RULE DOES NOT VIOLATE THE TENTH

AMENDMENT BECAUSE THE RULE PROVIDES A

COMPLIANCE ALTERNATIVE THAT DOES NOT

REQUIRE MS4 OPERATORS TO

REGULATE THIRD PARTIES

In a careful application of this Court's jurisprudence, the

Ninth Circuit agreed with the Fifth Circuit in holding that there

is no Tenth Amendment violation if EPA offers MS4s a compli-

ance alternative that does not require them to regulate third

parties. No court has held otherwise, and the Texas Cities do

not challenge that holding in this petition.

~ moxtiguemnnenanmnes . nen AN se EN

Instead, the Texas Cities contend that the Phase II rule

violates the Tenth Amendment because the alternative permit

option in fact requires MS4s to regulate third parties. Pet. at 27-

30. According to the Texas Cities, because certain parts of the

relevant regulations for the alternative permit option require

that the MS4 provide information about proposed ordinances

or other regulatory mechanisms in the permit application, the

permits themselves must include ordinances or other similar

regulatory mechanisms. Id. The court of appeals found to the

contrary, and for several reasons this issue does not merit re-

view by this Court.”

First, there is no conflict in authority or important, unre-

solved issue of law on this point. The Texas Cities’ position is

simply an argument that certain regulations mean something

other than what their plain language states and what the

agency charged with their interpretation says they mean. The

Texas Cities admit that what they seek is correction of a pur-

ported “mistake,” Pet. at 27, and simple correction of a mistake

is not a sufficient ground for certiorari. The Texas Cities invoke

no interpretive principles and cite only two cases - neither of

which is a decision of this Court, and one of which is discussed

solely for the purpose of arguing that it does not govern here.8

Pet. at 27-30.

7 The Texas Cities state that the rule ” potentially affects more than

50,000 State and local governmental entities in the nation.” Pet. at 27; see also

Pet. at 14. However, the Texas Cities do not cite any source for this 50,000

figure. The rule itself identifies a Pproximately 5,700 cities or counties actually

or potentially subject to the rule. Phase II Pream. & R., 64 Fed. Reg. at 68812-

37.

8 The Texas Cities do suggest that EPA’s interpretation caused the

court of appeals to “misapply” SWANCC because both the minimum meas-

ures option and the alternative permit option allegedly require MS4s to regu-

late third parties, so that the rule raises “significant federalism issues.” Pet. at

Second, the Texas Cities’ position on the merits is not

correct. The plain language of the relevant statute indicates

that the Phase I rule provisions were to establish “regulations

setting forth the permit application requirements” for large and

medium MS4s. 33 U.S.C. § 1342(p)(4)(A) & (B), App. 95-96

The Phase I rule does exactly that: establish permit application

requirements. See, e.g.,40 C.F.R. 122.26(d), NRDC App. 1 (cap-

tioned “Application requirements for large and medium mu-

nicipal storm sewer systems”). The court of appeals found that

these regulations, which now also serve as the application re-

quirements for the alternative permit option under the Phase II

rule, did not “specif[y] the contents of the permit that will re-

sult from the application process.” App. 20. As a result,

“nothing in [the permit application requirements] will compel

the operator of a small MS4 to implement a federal regulatory

program or regulate third parties.” App. 21. Citing City of Abi-

lene, the court of appeals also noted that EPA has in fact already

offered permits to MS4s that do not require the MS4s to regu-

late third parties. EPA did so, of course, under the Phase |

permit application requirements that now apply to Phase II

MS4s under the alternate permit option.

Additional support for finding of the court of appeals is

found in the text of the regulations. The regulations give the

permitting authority the power to excuse an MS4 from certain

application requirements - including the requirement to de-

scribe the illicit discharge ordinance - if those requirements are

not applicable or practicable, as they would not be for an alter-

native permit based on numeric effluent limits. 40 C.F.R.

§ 122.26(d)(2)(viii), NRDC App. 10. Moreover, the Phase II rule

30. As noted in section II.A below, however, the interpretation upheld by the

court of appeals does not create a federalism issue, but in fact eliminates any

alleged federalism issue, since the alternative permit option allows MS4s to

avoid regulating third parties.

expressly provides that an MS4 applying for an alternative

permit need not demonstrate its legal authority to enact such

ordinances. 40 C.F.R. § 122.33(b)(2)(ii), NRDC App. 11-12.

The exceptions to the application requirements found in

40 C.F.R §§ 122.26(d)(2)(viii) and 122.33(b)(2)(ii) are consistent

with EPA’s statement, in the preamble to the Phase II rule, that

MS4 operators seeking alternative permits do not need to pro-

- vide information concerning such program requirements if they

seek an alternative permit. App. 159. That agency interpreta-

tion of its own regulations is entitled to deference. Thomas Jef-

ferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (administrative

interpretation is of “controlling weight unless it is plainly erro-

neous or inconsistent with the regulation”). These exceptions

are also, of course, consistent with the fact that the alternative

permit option does not require MS4s to regulate third parties.

Il.

THERE ARE NO GROUNDS FOR FURTHER REVIEW OF

THE COURT OF APPEALS’ HOLDING THAT THE

PHASE II RULE IS CONSISTENT WITH THE CLEAR

STATEMENT CANON OF CONSTRUCTION THAT

GOVERNS WHEN A STATUTORY INTERPRETATION

RAISES SERIOUS FEDERALISM QUESTIONS

The Texas Cities argue that the Phase II rule is inconsis-

tent with the canon of construction that requires a clear state-

ment of congressional intent for statutory interpretations that

raise serious constitutional issues regarding the balance of fed-

eral and state authority. Pet. at 16-17. Though the Texas Cities

contend that the court of appeals’ rejection of their clear state-

ment challenge presents an issue of “immense importance” and

constitutes a “radical departure from settled law,” Pet. at 13, the

court of appeals w:s able to resolve the challenge easily

through a simple and correct application of the decision of this

Court - SWANCC - upon which the Texas Cities themselves

rely.

A. The Court of Appeals Applied the Same Authority -

SWANCC - that the Texas Cities Assert This Court

Should Apply and Correctly Held That the Phase II

Rule Is Fully Consistent with the Clear Statement

Canon

The Texas Cities contend that EPA lacked statutory au-

thority under SWANCC. SWANCC stands for the proposition

that statutes should be interpreted to avoid significant constitu-

tional problems unless such an interpretation is plainly con-

trary to the intent of Congress. 531 U.S. at 173, 174.

The court of appeals held the rule to be a valid exercise

of EPA’s statutory authority under Chevron, U.S.A., Inc. v.

NRDC, 467 U.S. 837 (1984). App. 16n.18. However, to address

the Texas Cities’ argument that SWANCC governed, the Ninth

Circuit also examined whether SWANCC invalidated the rule.

Id. Similarly, in City of Abilene, the Fifth Circuit determined

whether SWANCC invalidated the MS4 permits at issue in that

case. 325 F.3d at 660-61. Both courts concluded that SWANCC

did not invalidate EPA’s actions. Given that the only two

courts to examine this issue applied the same legal authority

that the Texas Cities contend that this Court should apply and

reached the same conclusion, the Texas Cities have no grounds

to assert the existence of a conflict in authority or an unresolved

question of law as a basis for certiorari.

Because there is no conflict of authority or unresolved

question of law, the Texas Cities’ position is simply that the

court of appeals misapplied SWWANCC. But the Ninth Circuit's

holding that the Phase II rule did not violate the clear statement

canon was correct. The court of appeals found that the Phase II

rule did not present any serious constitutional problems be-

cause the existence of the alternative permit option eliminated

any purported Tenth Amendment concerns. App. 16,n.18. As

noted above, the Fifth Circuit agrees that there is no Tenth

Amendment problem when EPA provides a compliance alter-

native that does not require MS4s to regulate third parties, and

no court has disagreed.

The clear statement canon of construction only governs,

however, when there is a serious constitutional issue. Accord-

ingly, in the absence of a serious constitutional issue, the court

of appeals correctly determined that the canon did not apply,

and there was no need for a special clear statement authorizing

the Phase II rule’s choice of compliance alternatives. App. 16

n.18.

In particular, the canon applies in situations where the

statutory interpretation at issue alters the traditional balance of

federal and state authority. SVWWANCC, 531 U.S. at 173. The

court of appeals found, however, that the Phase II Rule main-

tained, rather than altered, the existing balance of federal-state

authority, given that (1) EPA’s authority to regulate MS4s was

established over a quarter of a century ago, and (2) EPA prom-

ulgated the Phase I rule over a decade ago. App. 16, n.18.

The court also noted that, “even if a clear statement of

congressional intent were necessary, § 402(p) of the Clean Wa-

ter Act is replete with clear statements that Congress intended

EPA to require MS4s either to obtain . . . permits or to stop dis-

charging stormwater.”? Id.

9 Applying SWANCC, the Fifth Circuit found that the Clean Water

Act provided clear statements granting EPA discretion to ixpose permit con-

ditions similar to those in the minimum measures. City of Abilene, 325 F.3d at

661. The Fifth Circuit cited Clean Water Act sections 402(p)(3)(B)(ii) and (iii),

which provide that MS4 permits include “a requirement to effectively pro-

hibit nonstormwater discharges into the storm sewers” and “controls to re-

Indeed, the court of appeals’ decision to uphold the rule

is fully consistent with the clear statement canon. As this Court

has stated, the clear statement canon provides that statutes

should be interpreted to avoid significant constitutional prob-

lems unless such an interpretation is plainly contrary to the in-

tent of Congress., SWANCC, 531 U.S. at 173, 174.

In New York v. United States, 505 U.S. 144 (1992), this

Court applied this affirmative aspect of the canon in a Tenth

Amendment context. In that case, the Court confronted two

interpretations of a provision of the Low-Level Radioactive

Waste Policy Amendments Act of 1985 (“LLRWPA”). Under

one interpretation, the statutory provision was a mandate re-

quiring states to enact and enforce <a federal regulatory program

in violation of the Tenth Amendment. Under the other inter-

pretation, the statute provided a series of compliance alterna-

tives. Applying the clear statement canon, the Court held that

the latter interpretation was correct because the former was

constitutionally problematic.’ Id. at 170.

The court of appeals’ decision here is fully consistent

with New York. The court of appeals confronted two interpreta-

tions of the Phase II rule. Under the Texas Cities’ interpreta-

tion, the Phase II rule is an unconstitutional reading of EPA’s

duce the discharge of pollutants to the maximum extent practicable, including

management practices, control techniques . . . and such other provisions as

the Administrator . . . determines appropriate for the control of such pollut-

ants.” 33 U.S.C. § 1342(p)(3)(B)(ii) & (iii), App. 94.

10 In New York, the Court ultimately found, of course, that the final

alternative under the LLRWPA, the “take title” provision, did not provide a

constitutional alternative. 505 U.S. at 176. Unlike the “take title” provision

of the LLRWPA, however, the alternative permit option under the Phase II

rule is not unconstitutional standing alone, because it allows MS4s to control

pollutant discharges without requiring them to regulate third parties.

statutory authority, because, according to the Texas Cities, both

the minimum measures option and the alternative permit op-

tion require MS4 operators to regulate third parties in violation

of the Tenth Amendment. On the other hand, under EPA’s in-

terpretation, the rule is a constitutional reading of the statutory

authority because the alternative permit option does not re-

quire MS4 operators to regulate third parties, and thus the rule

offers a choice that does not violate the Tenth Amendment. The

clear statement canon of construction requires that the court

choose the interpretation that is least constitutionally problem-

atic - EPA’s interpretation - and the court of appeals did so. A

decision by this Court to reverse the court of appeals’ decision

and reject EPA’s interpretation would be directly contrary to

the canon of construction, and thus there is no reason to grant

the petition for writ of certiorari on this point."

1 Citing Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S.

528 (1985), the Texas Cities suggest that the court of appeals’ decision “ failed

to ensure the efficacy of the procedural political safeguards” that protect state

and municipal interests. Pet. at 22. The Texas Cities appear to be arguing

that the court of appeals somehow ran roughshod over Congress’ views on

EPA’s authority under the relevant statutes. Id. at 22-23.

The Texas Cities’ invocation of Garcia makes no sense, however.

Congress, like the court of appeals, declined to invalidate the Phase II rule.

Prior to promulgation of the rule, at the behest of a Senator from Texas, Con-

gress directed EPA to report on the proposed rule. Department of Veterans

Affairs & Housing and Urban Dev. & Indep. Agencies Approp. Act of 2000,

Pub. L. 106-74 § 431, 113 Stat. 1047 (1999) (enacting Hutchison Amend., 145

Cong. Rec. S11445 (Sept. 24, 1999)). Congress received that report when the

EPA administrator signed the rule in October 1999 and would have received a

copy of the rule itself pursuant to the Congressional Review Act of 1996, 5

U.S.C. § 801(a)(1)(A) (the “Review Act”). Nonetheless, Congress did not use

its Review Act authority to invalidate the rule. 5 U.S.C. §§ 801(b)(1) & 802.

NRDC respectfully suggests that this Court should not grant certiorari to va-

cate the rule on a clear statement challenge when Congress itself declined to

vacate the rule.

B. Because the Texas Cities Did Net Previously Argue

That EPA Had a Duty to Provide Additional Informa-

tion About the Alternative Permit Option, This Ar-

gument Is Not Properly Before This Court

The Texas Cities now contend, for the first time, that the

Phase II rule is invalid because EPA had a legal duty to provide

additional information concerning the alternative permit option

so that MS4 operators could “voluntarily and knowingly”

choose between the two compliance options. Pet. at 25 (citing

College Savings Bank v. Florida Prepaid Postsecondary Educ. Ex-

pense Bd., 527 U.S. 666, 680-84 (1999); South Dakota v. Dole, 483

U.S. 203, 207 (1987); Pennhurst St. Sch. & Hosp. v. Haldermann,

451 U.S. 1, 17-18 (1981)). The Texas Cities did not make this ar-

gument before the court of appeals. Thus, it is not properly be-

fore the Court. See, e.g., Pennsylvania Dep’t of Corrections v. Yes-

key, 524 U.S. 206, 212-13 (1998).

Besides, even if the Texas Cities had made this argu-

ment before the court of appeals, the three decisions they cite

do not concern the Tenth Amendment, so in any event there

could be no direct conflict between the holdings in those cases

and the Ninth Circuit's decision. See College Savings Bank, 527

U.S. at 680-84 (sovereign immunity); South Dakota, 483 U.S. at

207 (spending clause); Pennhurst St. Sch. & Hosp., 451 US. at 17-

18 (spending clause). Moreover, the rule and preamble do give

MS4 operators sufficient information to make an informed

choice between the minimum measures option and the alterna-

tive permit option.!2 See generally App. 100-160.

12 In addition to the information EPA provided in the preamble to

the rule, there is in general great familiarity with numeric effluent limit per-

mits, which are available to MS4s under the alternative permitting option,

since permitting authorities have been using numeric effluent limit permits

for decades in a wide variety of contexts.

CONCLUSION

For these reasons, the petition for a writ of certiorari

should be denied.

Respectfully submitted,

ANDREW G. FRANK

Counsel of Record

GAINES GWATHMEY III

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, New York 10019-6064

(212) 373-3000

NANCY K. STONER

NATURAL RESOURCES DEFENSE

COUNCIL, INC.

1200 New York Avenue, N.W.

Washington, D.C. 20005

(202) 289-6868

Attorneys for Respondent Natural

Resources Defense Council, Inc.

40 C.F.R. § 122.26(d) (excerpts)

(d) Application requirements for large and medium municipal

separate storm sewer discharges. ... Permit applications for

discharges from large and medium municipal storm sewers

Or municipal storm sewers designated under paragraph

(a)(1)(v) of this section shall include;

* * *

(2) Part 2. Part 2 of the application shall consist of:

(i) Adequate legal authority. A demonstration that the

applicant can operate pursuant to legal authority established

by statute, ordinance or series of contracts which authorizes

or enables the applicant at a minimum to:

(A) Control through ordinance, permit, contract, order or

similar means, the contribution of pollutants to the municipal

storm sewer by storm water discharges associated with

industrial activity and the quality of storm water discharged

from sites of industrial activity; _

(B) Prohibit through ordinance, order or similar means, illicit

discharges to the municipal separate storm sewer;

discharge to a municipal separate storm sewer of spills,

dumping or disposal of materials other than storm water;

(D) Control through interagency agreements among

coapplicants the contribution of pollutants from one portion

of the municipal system to another portion of the municipal

system;

(E) Require compliance with conditions in ordinances,

permits, contracts or orders; and

App. 1

(F) Carry out all inspection, surveillance and monitoring

procedures necessary to determine compliance and

noncompliance with permit conditions including the

prohibition on illicit discharges to the municipal separate

storm sewer.

(ii) Source identification. The location of any major outfall

that discharges to waters of the United States that was not

reported under paragraph (d)(1)(iii)(B)(1) of this section.

Provide an inventory, organized by watershed of the name

and address, and a description (such as SIC codes) which

best reflects the principal products or services provided by

each facility which may discharge, to the municipal separate

storm sewer, storm water associated with industrial activity;

(iii) Characterization data. When "quantitative data" for a

pollutant are required under paragraph (d)(2)(iii)(A)(3) of

this section, the applicant must collect a sample of effluent in

accordance with 40 CFR § 122.21(g)(7) and analyze it for the

pollutant in accordance with analytical methods approved

under part 136 of this chapter. When no analytical method is

approved the applicant may use any suitable method but

must provide a description of the method. The applicant

must provide information characterizing the quality and

quantity of discharges covered in the permit application,

including:

(A) Quantitative data from representative outfalls

designated by the Director (based on information received in

part 1 of the application, the Director shall designate between

five and ten outfalls or field screening points as

representative of the commercial, residential and industrial

land use activities of the drainage area contributing to the

system or, where there are less than five outfalls covered in

the application, the Director shall designate all outfalls)

developed as follows:

App. 2

(1) For each outfall or field screening point designated under

this subparagraph, samples shall be collected of storm water

discharges from three storm events occurring at least one

month apart in accordance with the requirements at

§ 122.21(g)(7) (the Director may allow exemptions to

sampling three storm events when climatic conditions create

good cause for such exemptions);

(2) A narrative description shall be provided of the date and

duration of the storm event(s) sampled, rainfall estimates of

the storm event which generated the sampled discharge and

the duration between the storm event sampled and the end

of the previous measurable (greater than 0.1 inch rainfall)

storm event;

(3) For samples collected and described under paragraphs

(d)(2)(iii)(A)(1) and (A)(2) of this section, quantitative data

shall be provided for: the organic pollutants listed in Table

II; the pollutants listed in Table III (toxic metals, cyanide,

and total phenols) of appendix D of 40 CFR part 122, and for

the following pollutants:

Total suspended solids (TSS)

Total dissolved solids (TDS)

COD

BODs

Oil and grease

Fecal coliform

Fecal streptococcus

Total Kjeldahl nitrogen

Nitrate plus nitrite

Dissolved phosphorus

Total ammonia plus organic nitrogen

Total phosphorus

App. 3

(4) Additional limited quantitative data required by the

Director for determining permit conditions (the Director may

require that quantitative data shall be provided for

additional parameters, and may establish sampling

conditions such as the location, season of sample collection,

form of precipitation (snow melt, rainfall) and other

parameters necessary to insure representativeness);

(B) Estimates of the annual pollutant load of the cumulative

discharges to waters of the United States from all identified

municipal outfalls and the event mean concentration of the

cumulative discharges to waters of the United States from all

identified municipal outfalls during a storm event (as

described under § 122.21(c)(7)) for BODs, COD, TSS,

dissolved solids, total nitrogen, total ammonia plus organic

nitrogen, total phosphorus, dissolved phosphorus, cadmium,

copper, lead, and zinc. Estimates shall be accompanied by a

description of the procedures for estimating constituent loads

and concentrations, including any modelling, data analysis,

and calculation methods;

outfall identified in either paragraph (d)(2)(ii) or

(d)(1)(iii)(B)(1) of this section of the seasonal pollutant load

and of the event mean concentration of a representative

storm for any constituent detected in any sample required

under paragraph (d)(2)(iii)(A) of this section; and

(D) A proposed monitoring program for representative data

collection for the term of the permit that describes the

location of outfalls or field screening points to be sampled (or

the location of instream stations), why the location is

representative, the frequency of sampling, parameters to be

sampled, and a description of sampling equipment.

App. 4

(iv) Proposed management program. A proposed management

program covers the duration of the permit. It shall include a

comprehensive planning process which involves public

participation and where necessary intergovernmental

coordination, to reduce the discharge of pollutants to the

maximum extent practicable using management practices,

control techniques and system, design and engineering

methods, and such other provisions which are appropriate.

The program shall also include a description of staff and

equipment available to implement the program. Separate

proposed programs may be submitted by each coapplicant.

Proposed programs may impose controls on a systemwide

basis, a watershed basis, a jurisdiction basis, or on individual

outfalls. Proposed programs will be considered by the

Director when developing permit conditions to reduce

pollutants in discharges to the maximum extent practicable.

Proposed management programs shall describe priorities for

implementing controls. Such programs shall be based on:

(A) A description of structural and source control measures

to reduce pollutants from runoff from commercial and

residential areas that are discharged from the municipal

storm sewer system that are to be implemented during the

life of the permit, accompanied with an estimate of the

expected reduction of pollutant loads and a proposed

schedule for implementing such controls. At a minimum, the

description shall include:

(1) A_ description of maintenance activities and a

maintenance schedule for structural controls to reduce

pollutants (including floatables) in discharges from

municipal separate storm sewers;

(2) A description of planning procedures including a

comprehensive master plan to develop, implement and

enforce controls to reduce the discharge of pollutants from

App. 5

municipal separate storm sewers which receive discharges

from areas of new development and _ significant

redevelopment. Such plan shall address controls to reduce

pollutants in discharges from municipal separate storm

sewers after construction is completed. (Controls to reduce

pollutants in discharges from municipal separate storm

sewers containing construction site runoff are addressed in

paragraph (d)(2)(iv)(D) of this section;

(3) A description of practices for operating and maintaining

public streets, roads and highways and procedures for

reducing the impact on receiving waters of discharges from

municipal storm sewer systems, including’ pollutants

discharged as a result of deicing activities;

(4) A description of procedures to assure that flood

management projects assess the impacts on the water quality

of receiving water bodies and that existing structural flood

control devices have been evaluated to determine if

retrofitting the device to provide additional pollutant

removal from storm water is feasible;

(5) A description of a program to monitor pollutants in

runoff from operating or closed municipal landfills or other

treatment, storage or disposal facilities for municipal waste,

which shall identify priorities and procedures for inspections

and establishing and implementing control measures for

such discharges (this program can be coordinated with the

program developed under paragraph (d)(2)(iv)(C) of this

section); and

(6) A description of a program to reduce to the maximum

extent practicable, pollutants in discharges from municipal

separate storm sewers associated with the application of

pesticides, herbicides and fertilizer which will include, as

appropriate, controls such as educational activities, permits,

App. 6

certifications and other measures for commercial applicators

and distributors, and controls for application in public right-

of-ways and at municipal facilities.

(B) A description of a program, including a schedule, to

detect and remove (or require the discharger to the

municipal separate storm sewer to obtain a separate NPDES

permit for) illicit discharges and improper disposal into the

storm sewer. The proposed program shall include:

(1) A description of a program, including inspections, to

implement and enforce an ordinance, orders or similar

means to prevent illicit discharges to the municipal separate

storm sewer system; this program description shall address

all types of illicit discharges, however the following category

of non-storm water discharges or flows shall be addressed

where such discharges are identified by the municipality as

sources of pollutants to waters of the United States: water

line flushing, landscape irrigation, diverted stream flows,

rising ground waters, uncontaminated ground water

infiltration (as defined at 40 CFR 35.2005(20)) to separate

storm sewers, uncontaminated pumped ground water,

discharges from potable water sources, foundation drains, air

. conditioning condensation, irrigation water, springs, water

from crawl space pumps, footing drains, lawn watering,

individual residential car washing, flows from riparian

habitats and wetlands, dechlorinated swimming pool

discharges, and street wash water (program descriptions

shall address discharges or flows from fire fighting only

where such discharges or flows are identified as significant

sources of pollutants to waters of the United States);

(2) A description of procedures to conduct on-going field

screening activities during the life of the permit, including

areas or locations that will be evaluated by such field screens;

App. 7

(3) A description of procedures to be followed to investigate

portions of the separate storm sewer system that, based on

the results of the field screen, or other appropriate

information, indicate a reasonable potential of containing

illicit discharges or other sources of non-storm water (such

procedures may _ include: sampling procedures for

constituents such as fecal coliform, fecal streptococcus,

surfactants (MBAS), residual chlorine, fluorides and

potassium; testing with fluorometric dyes; or conducting in

storm sewer inspections where safety and _ other

considerations allow. Such description shall include the

location of storm sewers that have been identified for such

evaluation);

(4) A description of procedures to prevent, contain, and

respond to spills that may discharge into the municipal

separate storm sewer; y

(5) A description of a program to promote, publicize, and

facilitate public reporting of the presence of illicit discharges

or water quality impacts associated with discharges from

municipal separate storm sewers;

(6) A description of educational activities, public

information activities, and other appropriate activities to

facilitate the proper management and disposal of used oil

and toxic materials; and

(7) A description of controls to limit infiltration of seepage

from municipal sanitary sewers to municipal separate storm

sewer systems where necessary;

pollutants in storm water discharges to municipal systems

from municipal landfills, hazardous waste. treatment,

disposal and recovery facilities, industrial facilities that are

App. 8

subject to section 313 of title III of the Superfund

Amendments and Reauthorization Act of 1986 (SARA), and

industrial facilities that the municipal permit applicant

determines are contributing a substantial pollutant loading to

the municipal storm sewer system. The program shall:

(1) Identify priorities and procedures for inspections and

establishing and implementing control measures for such

discharges;

(2) Describe a monitoring program for storm water

discharges associated with the industrial facilities identified

in paragraph (d)(2)(iv)(C) of this section, to be implemented

during the term of the permit, including the submission of

quantitative data on the following constituents: any

pollutants limited in effluent guidelines subcategories, where

applicable; any pollutant listed in an existing NPDES permit

for a facility; oil and grease, COD, pH, BODs, TSS, total

phosphorus, total Kjeldahl nitrogen, nitrate plus nitrite

nitrogen, and any information on discharges required under

§ 122.21(g)(7)(vi) and (vii).

(D) A description of a program to implement and maintain

structural and non-structural best management practices to

reduce pollutants in storm water runoff from construction

sites to the municipal storm sewer system, which shall

include:

(1) A description of procedures for site planning which

incorporate consideration of potential water quality impacts;

(2) A description of requirements for nonstructural and

structural best management practices;

App. 9

(3) A description of procedures for identifying priorities for

inspecting sites and enforcing control measures which

consider the nature of the construction activity, topography,

and the characteristics of soils and receiving water quality;

and

(4) A description of appropriate educational and hemes

measures for construction site operators.

(v) Assessment of controls. Estimated reductions in loadings of

pollutants from discharges of municipal storm sewer

constituents from municipal storm sewer systems expected

as the result of the municipal storm water quality

management program. The assessment shall also identify

known impacts of storm water controls on ground water.

(vi) Fiscal analysis. For each fiscal year to be covered by the

permit, a fiscal analysis of the necessary capital and

operation and maintenance expenditures necessary to

accomplish the activities of the programs under paragraphs

(d)(2) (iii) and (iv) of this section. Such analysis shall include

a description of the source of funds that are proposed to meet

the necessary expenditures, including legal restrictions on

the use of such funds.

(vii) Where more than one legal entity submits an

application, the application shall contain a description of the

roles and responsibilities of each legal entity and procedures

to ensure effective coordination.

(viii) Where requirements under paragraph (d)(1)(iv)(E),

(d)(2)(ii), (d)(2)(iii)(B) and (d)(2)(iv) of this section are not

practicable or are not applicable, the Director may exclude

any operator of a discharge from a municipal separate storm

sewer which is designated under paragraph (a)(1)(v),

(b)(4)(ii) or (b)(7)(ii) of this section from such requirements.

App. 10

The Director shall not exclude the operator of a discharge

from a municipal separate storm sewer identified in

appendix F, G, H or I of part 122, from any of the permit

application requirements under this paragraph except where

authorized under this section.

* * *

40 C.F.R. § 122.33(b)(2) (excerpts)

§ 122.33 If I am an operator of a regulated small MS4, how

do I apply for an NPDES permit and when do I have

to apply?

(2)(i) If you are seeking authorization to discharge under an

individual permit and wish to implement a program under

§ 122.34, you must submit an application to your NPDES

permitting authority that includes the information required

under §§ 122.21(f) and 122.34(d), an estimate of square

mileage served by your small MS4, and any additional

information that your NPDES permitting authority requests.

A storm sewer map that satisfies the requirements of

§ 122.34(b)(3)(i) will satisfy the map requirements in

§ 122.21(f)(7).

(ii) If you are seeking authorization to discharge under an

individual permit and wish to implement a program that is

different from the program under § 122.34, you will need to

comply with the permit application requirements of

§ 122.26(d)(1) and (2) by March 10, 2003. You do not need to

submit the information required by §§ 122.26(d)(1)(ii) and

(d)(2) regarding your legal authority, unless you intend for

App. 11

the permit writer to take such information into account when

developing your other permit conditions.

* * *

App. 12

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.