October 05, 2020

The Evolution of Stormwater Regulation

Lisa A. Kirschner

In 1987, Congress expanded the federal Clean Water Act’s National Pollutant Discharge Elimination System (NPDES) program to include stormwater runoff associated with industrial sites. 33 U.S.C. § 1342(p). The U.S. Environmental Protection Agency’s (EPA) implementation of the statutory requirements included the development of NPDES general permits. In 1995, EPA published the first Multi-Sector General Permit (MSGP) addressing stormwater discharges associated with approximately 29 major industrial sectors. Final National Pollutant Discharge Elimination System Storm Water Multi-Sector General Permit for Industrial Activities, 60 Fed. Reg. 50,804 (Sept. 29, 1995). The MSGP has been consistently reissued (and is generally subject to five-year terms); it is effective in areas where EPA is the permitting authority. Each new iteration of the permit can provide a template for stormwater permits in states with delegated NPDES authority. Beginning with that first permit, EPA clarified that it provided the general permit to “NPDES authorized States and encourages such States to consider [the] permit for their permitting needs.” Id. at 50,807. In short, changes in the EPA MSGP and its approach to stormwater compliance obligations can have broad national implications because the permit provisions are often echoed by state versions of the same.

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