Ecology Law Currents is the online-only publication of Ecology Law Quarterly, one of the nation's most respected and widely read environmental law journals. Currents features short-form commentary and analysis on timely environmental law and policy issues.


To be notified when the latest Currents articles are published, subscribe to the Currents list serve by emailing here.


Ecology Law Currents accepts submissions on an ongoing basis. For more information, see our guidelines.

« Acceptability of the Deschutes Groundwater Mitigation Program | Main | Seawater Desalination: Climate Change Adaptation Strategy or Contributor? »


Feed You can follow this conversation by subscribing to the comment feed for this post.

It is absolutely fundamental that the laws are clear and easy to understand if there is to be any chance of success.

This measure has the potential to be effective if applied stringently and with impunity. Another key to make this happen is the cooperation between all the parties involved. It will take a coordinated effort between the citizens, law enforcement, and other groups to safeguard against those who are committing the crime of irresponsibly disposing stormwater.

This is quite a comprehensive article about water pollution. Yes, there a lot of tangible ways to utilize storm water. Also, problems related to storm water pollution can be solved once a concrete plan is crafted.

I agree that holding the end of the line regulators accountable is the right thing to do, but efforts should still be made to identify the original polluters. Imposing liability to the District should encourage the District to find a way to identify the source of the pollutants and pass the cost up the chain. This could ultimately result in tighter MS4 standards and run off treatment, where the operators could monitor the concentrations of certain pollutants passing through the system. Knowing what pollutants are posing the biggest problems could allow the District, or any interested party, to figure out who the big emitters of these types of pollutants are, and then apply costs appropriately. While not a precise art, it would help spread the costs more evenly and could encourage more responsible practices at the source.

I don't see any feasible way to regulate stormwater discharge other than that approved by the Ninth Circuit here. Regulating individual NPS polluters is difficult and inefficient, and those who contribute small amounts of pollutants from non-centralized sources (lawn fertilizer, motor oil deposits, etc.), even if the aggregate pollution is significant, would escape liability as a practical matter. If the bottom line is the pollutant concentration in the discharged water, the buck cannot stop anywhere but the entity physically controlling the discharge.

Mitigating sources of polluted runoff, like agricultural sources, sediment from construction, road contaminants, and other NPS pollution is not the strength of the CWA. These problems can be addressed through other regulatory strategies, like silt fence requirements and low impact development regulations, but they don't fit comfortably within a discharge permit structure.

The District’s argument on appeal—that the MS4 merely channels pollutants created by other municipalities—seems irresponsible at best. The Ninth Circuit got it right. The MS4 collects stormwater runoff from various municipalities and the discharge of pollutants from this runoff is governed by a NPDES permit. While the District may not be responsible for all the pollutants in the water, it still controls the point source—which places the District in the best position to monitor and limit pollution from incoming water

It will be interesting to see the effects these decisions will have as far as distributing liability and costs for storm water pollution remediation. An easier mechanism would be to distribute the cost among everyone. But if technically possible, it would be best to transfer costs and liability to identifiable upstream polluters in order to incentivize pollution reduction at the source.

It seems as though this article is really addressing one of the chief concerns with impervious surfaces. From my time working in the Chesapeake Bay with people harvesting oysters, I know that their concerns revolve around reducing runoff from the urbanized areas surrounding the Bay.

It seems fundamentally unfair to allow for no liability only because the polluter cannot be identified. This "end-of-pipe" analysis produces satisfactory policy outcomes as well. Holding the manager of the discharge liable encourages them to identify polluters (rather than allowing anonymous pollution) and if that isn't possible, it holds them responsible for behavior they facilitated.

This article presents a very interesting analysis of regulating storm water pollution. It seems to show that there soon may be more comprehensive way to use the CWA to achieve a better result. I'm curious about the last 2 sentences... If a street becomes a point source simply by channelling water, does this mean that cities will effectively have to take the responsibility and be the catch-all entity responsible for ALL "up-stream" pollution?

It's nice to know that these laws are being clarified and that in the future the "middle men" will be forced to take some responsibility.

Verify your Comment

Previewing your Comment

This is only a preview. Your comment has not yet been posted.

Your comment could not be posted. Error type:
Your comment has been saved. Comments are moderated and will not appear until approved by the author. Post another comment

The letters and numbers you entered did not match the image. Please try again.

As a final step before posting your comment, enter the letters and numbers you see in the image below. This prevents automated programs from posting comments.

Having trouble reading this image? View an alternate.


Post a comment

Comments are moderated, and will not appear until the author has approved them.

Your Information

(Name and email address are required. Email address will not be displayed with the comment.)