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Stormwater Runoff Permit Changes

Many states are moving toward adopting permitting of stormwater runoff regulations that will allow contractors to forego rigorous pollutant-mixing analyses if their activities are conducted under a general permit and if they follow a carefully prescribed and enforced group of best management practices (BMPs). BMPs are designed to reduce or eliminate adverse water-quality impacts from sediment, nutrients, bacteria and other pollutants, and can also include erosion and sediment controls at new construction sites, upgraded septic systems, control of impervious surface water runoff and tighter overall soil and water conservation practices. Unfortunately, because of budget restraints and poor integration of data among data collectors, many states are barely able to monitor or make baseline assessments or watershed profiles for one third of their waters. There is, therefore no existing data against which to make such an analysis. In a recent decision on West Virginia's antidegradation procedure, a federal court indicated that the BMP approach might be an acceptable way to implement antidegradation policies under general permit programs if the BMPs prevent degradation of water quality. However, environmental groups have indicated that if stormwater discharges significantly degrade water quality--such as in areas of new development--or if they cause violations of water quality criteria, these groups will submit challenges. The recent federal rulings on antidegradation, however, support fairly narrow interpretations of the federal regulation, so the incentives for builders, contractors and landscape architects to make sure that new and expanded stormwater discharges do not adversely affect water quality has never been greater.


Conditional Permit Waiver Upheld

The California State and Regional Water Boards held a joint meeting in Sacramento at the beginning of July to review the progress of the Irrigated Lands Waiver. In January, the State Water Resources Control Board upheld the Central Valley Regional Board's conditional waiver, which requires monitoring of runoff from irrigated lands. The State Board ordered a six-month review of the waiver. According to Bob Schnieider, chair of the Central Valley Regional Board, "Most of the growers in the Central Valley understand this and have established and joined coalition groups, designed monitoring plans and are working to ensure that runoff from irrigated lands does not degrade the quality of water."

The Regional Board waived the requirement to get permits with the condition that gives three options: 1.) Join a coalition group and apply for a group waiver; or 2.) Apply for an individual discharger waiver; or 3.) Get an individual permit.

Each of the options requires managing operations so they do not cause or contribute to surface water pollution. It also requires water monitoring, management practices to prevent water quality problems and prioritizing efforts to address problems or pollutants of concern such as pesticides and nutrients. "We will continue the program," said Arthur Baggett, Jr., chair of the State Water Board, "and encourage groups to increase efforts in monitoring, outreach and coalition membership."

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Class Action Lawsuit Bill Stalled

The compromise Class Action Reform Bill presently before Congress (known as S2062) concerns many manufacturing groups and trade associations. Introduced in February for consideration on the senate floor, the legislation is heavily supported by the Chamber of Commerce and would expand federal court jurisdiction over large, multi-state class actions filed in state court The legislation fell one vote short last October, but the current bill was stalled because the senate wanted to finish work on the Department of Defense Appropriations bill before moving forward. Supported by a few democrats who added compromise provisions, it looks as if there may be a clear path to passage. Many trade associations are very concerned about class action lawsuits because ultimately those lawsuits can impact their members on many volatile matters including OSHA issues. This reform legislation is a relatively infrequent instance where Congress may use its legislative power to heavily influence how the courts operate procedurally on a subject that has direct importance for many manufacturers, trade associations and businesses.

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August 24, 2019, 5:27 am PDT

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