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August 21, 2018  |  Written by Daniel L. Quinley

Environmental Protection Agency Must Regulate Currently Unpermitted Stormwater Discharges in Two Los Angeles Waterways

On August 10, 2018, a federal district court judge in the Central District of California found that the Environmental Protection Agency (EPA) must regulate — either by permitting or prohibiting — certain currently unpermitted stormwater discharges in Los Angeles because the agency has sufficient information to show that such discharges are contributing to water quality impairments.

Environmental groups, including Los Angeles Waterkeeper, Natural Resources Defense Council, and American Rivers, originally petitioned the EPA requesting that stormwater discharges from privately owned commercial, industrial, and institutional facilities into the Dominguez and Los Cerritos Channels in Los Angeles be subject to National Pollutant Discharge Elimination System (NPDES) permits.  The EPA denied the parties’ petitions in October 2016, finding that other Clean Water Act (CWA) permits at the watershed and state levels were adequate.  The environmental groups filed the instant action, Los Angeles Waterkeeper et al. v. Pruitt et al., 2:17-cv-03454, on May 8, 2017.

Last week the court ruled in favor of the environmental groups, essentially finding that the EPA’s actions to decline to engage in a permitting process for these sources were arbitrary and capricious, and contrary to the law.  The environmental groups alleged that the EPA wrongly denied their request to require permits (or subject them to a prohibition of discharge) for these discharges of stormwater, despite providing information regarding water impairment from the sources of stormwater discharges addressed in the petition.  The court found that the EPA had sufficient information and data showing that the discharges impaired water quality.  The court further found that once the EPA had enough information, it was obligated, under the CWA’s total prohibition on discharge of pollutants, either to require permits or to prohibit the stormwater discharges.  The court held that the EPA must regulate such stormwater discharges when it determines that the discharges contribute to water quality violations, that the EPA could not rely on other CWA permits to address water quality impairments, and that the EPA’s refusal to regulate the discharges was arbitrary and capricious and contrary to the unambiguous terms of the CWA.

The Central District’s decision provides that the EPA must regulate unpermitted stormwater discharges if presented with sufficient data and information showing that an unpermitted source or sources of stormwater discharges may be impairing water quality.  The EPA cannot rely on other, active statewide general permits where it has specifically found that these unpermitted stormwater discharges are contributing to water quality impairments.  The Central District’s decision may open the door for environmental interests to file additional petitions to the EPA for other watersheds, which would then further expand the NPDES permitting requirements on currently unpermitted sources of stormwater discharges.

For additional information, please contact Dan Quinley at dquinley@somachlaw.com, or Tess Dunham at tdunham@somachlaw.com.

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