EPA’s Phase I Stormwater Permit Rules are Promulgated

  • Application and permit requirements for large and medium municipalities

  • Application and permit requirements for light and heavy industrial facilities based on Standard Industrial Classification (SIC) Codes, and construction activity ≥ 5 acres


EPA’s Phase II Stormwater Permit Rules are Promulgated

  • Permit requirements for census-defined urbanized areas

  • Permit requirements for construction sites 1 to 5 acres


Total Maximum Daily Load (TMDL) Program Litigation

  • Courts order EPA to establish TMDLs in a number of states if the states fail to do so. The TMDLs assign Waste Load Allocations for stormwater discharges which must be incorporated as effluent limitations in stormwater permits.


Section 323 of the Energy Policy Act of 2005

  • EPA promulgates rule (2006) to exempt stormwater discharges from oil and gas exploration, production, processing, treatment operations, or transmission facilities from NPDES stormwater permit program.

  • In 2008, courts order EPA to reverse the rule which exempted certain activities in the oil and gas exploration industry from storm water regulations. In Natural Resources Defense Council vs. EPA (9th Cir. 2008), the court held that it was “arbitrary and capricious” to exempt from the Clean Water Act stormwater discharges containing sediment contamination that contribute to a violation of water quality standards.


Energy Independence and Security Act of 2007

  • Requires all federal development and redevelopment projects with a footprint above 5,000 square feet to achieve predevelopment hydrology to the “maximum extent technically feasible.”

The Basic NPDES Program: Regulating Pollutant Discharges

The centerpiece of the CWA is its mandate “that all discharges into the nation’s waters are unlawful, unless specifically authorized by a permit” [42 U.S.C. §1342(a)]. Discharges do not include all types of pollutant flows, however. Instead, “discharges” are defined more narrowly as “point sources” of pollution, which in turn include only sources that flow through a discrete conveyance, like a pipe or ditch, into a lake or stream [33 U.S.C. §§ 1362(12) and (14)]. Much of the focus of the CWA program, then, is on limiting pollutants emanating from these discrete, point sources directly into waters of the United States. Authority to control nonpoint sources of pollution, like agricultural runoff (even when drained via pipes or ditches), is generally left to the states with more limited federal oversight and direction.

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