Enforcement of Municipal Stormwater Ordinances Is Tricky Business: Failure to Enforce an Ordinance Required Under a Permit Is Not a Violation of the Permit

Stormwater pollution has become an increasingly important problem.  Part of the difficulty in solving it is that it’s not obvious who should be responsible.  Should cash-strapped municipalities be on the hook or should it be developers and others who own and maintain large properties with acres of impermeable surfaces?  Often, the answer given by EPA and state regulators is that municipal separate stormwater sewer systems, or MS4s are responsible, but they have the authority – and sometimes the obligation – to impose appropriate requirements on property owners.

That was the case in Citizens for Pennsylvania’s Future v. Pittsburgh Water and Sewer Authority.  Pennsylvania DEP issued an NPDES permit to the PWSA.  The permit required that the City of Pittsburgh and the PWSA enact ordinances:

to address (1) illicit discharge detection and elimination; (2) construction site runoff control; and (3) post-construction stormwater management in new development and redevelopment.

They did so.  However, according to the plaintiffs, the City failed to enforce the ordinance in the case of what appears to be a large urban renewal project in Pittsburgh.  The plaintiffs sued the PWSA and the City, alleging that the failure to enforce the ordinance constituted a violation of the NPDES permit.

The Court was having none of it.  After noting that NPDES permits are a form of contract and must be interpreted according to their plain meaning, the Court reviewed the permit and found that:

it in no way imposes a condition that if the ordinances are violated that this results in a violation of the permit itself.  Nowhere in the permit does it explicitly say that it is a violation for a failure to enforce an ordinance enacted pursuant to the permit’s terms. We will not implicitly read this requirement into the permit, which sets forth various ways in which the permit is violated or the action or inaction of the permittee would impose penalties on the permittee.

That’s the end of this battle, but it’s almost certainly not the end of the war.  As EPA, state agencies, and citizen groups all continue to focus on stormwater issues, we can expect to see more cases in which municipalities, federal and state regulators, and courts are forced to figure out who bears ultimate responsibility for solving this seemingly intractable issue.

Fasten your seatbelts.  It’s going to be a bumpy night.

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