In December 2014, the Natural Resources Defense Council (NRDC) and the Environmental Defense Center (NGOs) filed a petition for a writ of mandamus in the US Court of Appeals for the Ninth Circuit to enforce the Ninth Circuit’s decision in Envtl. Def. Ctr., Inc. v. EPA.

The NGOs claim that the Agency has failed to comply with the 2003 decision that mandated EPA to strengthen its small municipal separate storm sewer systems (MS4s) rule. Specifically, the NGOs allege that EPA must do rulemaking to require National Pollutant Discharge Elimination System (NPDES) permitting authorities to review all notices of intent (NOIs) submitted by small MS4s as part of the general permitting scheme and provide opportunity for public review and comment on NOIs.

It is not anticipated that EPA will dispute the actions required of the Agency by the Ninth Circuit in the 2003 decision and remand. Thus, the issue that will likely be briefed by EPA is the timing of any future rulemaking action. The parties have indicated they are in settlement discussions and have jointly requested and received an extension for EPA’s response to the petition, which is now due on August 10, 2015. It is anticipated that any settlement will outline the schedule for the rulemaking only and not include any substantive agreements on content of the rule.

EPA rulemaking action for small MS4s will have broad implications on the national stormwater program. NACWA has already been engaged with EPA regarding this important issue and will continue active advocacy moving forward to ensure the perspectives of the national MS4 community are aggressively represented.