Recent Developments Create Mounting Uncertainty Concerning EPA’s Regulation of Stormwater Under the Clean Water Act

 
Client Advisory
January 16, 2013

This Client Advisory discusses how three recent legal developments illustrate EPA’s challenge in regulating stormwater runoff. First, EPA settled a lawsuit that requires the agency to propose new effluent limits for stormwater runoff that do not contain numerical turbidity limits. Next, the United States Supreme Court held that water flowing from a section of a river, lined with concrete to channel flow during storm and flood events, to another section is not a “discharge” of pollutants. Finally, the United States District Court for the Eastern District of Virginia found that EPA may not regulate stormwater runoff as a “surrogate” for limiting sediment load into a waterbody. These decisions suggest that both stormwater regulation by EPA and compliance by the regulated industry will be challenging.

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