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Control of Nonpoint Pollution Through Citizen Enforcement of Unpermitted Stormwater Discharges: A Proposal for Bottom-Up Litigation

November 2003

Citation: ELR 10876

Author: John M. Carter II

This Article investigates the murky regulatory world of stormwater pollution. Nonpoint source pollution has been described as the most significant water quality problem facing the United States.1 It is generally not subject to the primary enforcement mechanisms of the Clean Water Act (CWA).2 Stormwater is where the CWA's primary enforcement mechanisms, usually reserved for point sources, intersect with nonpoint pollution. Effective regulation of stormwater could go far toward controlling nonpoint sources of water pollution. However, the U.S. Environmental Protection Agency's (EPA's) approach to stormwater regulation has stopped short of effectiveness, reaching only a narrow albeit significant segment of industrial stormwater dischargers, while attempting to leave the overwhelming majority of dischargers discretionarily exempt from the CWA. The bulk or balance of stormwater discharges that EPA has chosen not to regulate are the focus of this Article.

If EPA's determination not to regulate these sources of stormwater is allowed to stand, it will, for the first time, allow the Agency to exempt categories of point sources from liability under the CWA. Far from providing effective regulation for the improvement of water quality, EPA's stormwater regulations will allow a significant number of point sources, which have been recognized as a threat to water quality, to discharge pollutants with immunity from both national pollutant discharge elimination system (NPDES) permit requirements and the strict prohibition against unpermitted discharges found in § 301(a) of the Act.3

The author is the Judicial Accountability Fellow at Defenders of Wildlife. He graduated from the University of the South with a B.A. in philosophy and attended law school at Washburn University, graduating with honors in 1997. He received an LL.M degree in environmental law from Vermont Law School, summa cum laude.