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The Oregon Court of Appeals released a decision April 28 in an appeal of stormwater permits issued to a number of large, Phase I municipalities in the state, finding that under Oregon state law municipal separate stormwater sewer system (MS4) permits do not require numeric effluent limits for discharges, even where stormwater pollutants are subject to total maximum daily loads (TMDLs).  The court’s ruling in Tualatin Riverkeepers v. Oregon Department of Environmental Quality (DEQ) represents a major victory for municipal stormwater utilities in the state, who intervened in the case in defense of the permits alongside Oregon DEQ.  NACWA consulted closely with its Oregon public utility members during the course of the litigation and is very pleased with the result.  NACWA also believes the court’s reasoning in the case can be very helpful to other utilities across the country that are facing stormwater permits requiring numeric limits and compliance with TMDLs.

The case involves a series of Phase I MS4 permits issued by Oregon DEQ in 2005 to large municipalities, including NACWA members the City of Portland and Clean Water Services.   A number of local activist groups immediately challenged the permits in state court because they did not contain numeric effluent limits or requirements to comply with state water quality standards.  In 2007 a lower state court upheld the permits and dismissed the challenge.  The citizen activist groups then appealed the decision to the Oregon Court of Appeals, which heard arguments in the case in May 2009.  The decision this week from the appeals court upholds the lower court ruling and dismisses the challenges to the permits. 

In explaining its decision, the Court of Appeals rejected arguments from the activist groups that a requirement under Oregon law for MS4 permits to contain effluent limits meant that such limits must be expressed numerically.  The court noted that the Oregon statute “does not mandate that such effluent limitations take a particular form.”  The court then went even further by stating that the best management practice (BMP) requirement in the stormwater permits was in fact itself a form of effluent limitation, stating clearly that “a best management practices requirement is a type of effluent limitation.”  The court also dismissed arguments from the activist groups that because the MS4 permits required compliance with existing TMDLs, the permits must contain numeric limits corresponding with the wasteload allocations established in the TMDLs.  The court found these arguments unpersuasive, issuing the following explanation:

"Although the permits do not themselves include numeric wasteload allocations like those set forth in the TMDLs, the TMDL wasteload allocations are clearly referenced in the permits, and the permits require implementation of best management practices, set forth in the storm water management plans, to make progress toward meeting those wasteload allocations.  Again, best management practices are a type of effluent limitation that is used in municipal storm water permits.  Furthermore, the permits incorporate benchmarks, through incorporation of the storm water management plan, which are specific pollutant load reduction goals for the permittees.  Those measures are ‘permit requirements’ that properly incorporate the TMDL wasteload allocations."

Additionally, the court also clarified that neither federal nor state law mandate MS4 permits to require strict compliance with state water quality standards.  The court reiterated years of legal precedent that the federal Clean Water Act only "requires that…permits relating to municipal storm water discharges require reduction of 'the discharge of pollutants to the maximum extent practicable.'"  The court further clarified that under the maximum extent practicable standard, "dischargers of municipal storm water are not subject" to strict compliance with state water quality standards. 

Although the court based its decision in the case primarily on state law, NACWA believes the court’s rationale can be very beneficial to stormwater utilities in other parts of the country struggling with similar MS4 permit issues.  In particular, the court’s clear statement that BMPs are a form of effluent limitation can be used to rebut arguments that the inclusion of effluent limitations in stormwater permits can only be done through numeric limits.  Furthermore, the court’s reasoning makes clear that it is possible to include wasteload allocations from TMDLs in MS4 permits without having to set strict numeric limits.  Instead, wasteload allocations can be incorporated in permits through an adaptive management approach.  This is a key argument for stormwater utilities to consider in the face of growing requirements from regulatory authorities and citizen groups for the incorporation of TMDLs in future municipal stormwater permits. 

Also valuable for utilities in this opinion in the court’s clear finding that the "maximum extent practicable" standard for reducing pollutants is the only one required by federal law for stormwater permits and that this standard does not require strict compliance with state water quality standards.  This view is in line with other courts that have examined the issue, including a recent 2008 decision from the Washington State Pollution Control Hearing Board reaching the same conclusion.  NACWA participated in the Washington State case and a copy of the decision in that case is available on the Association’s Litigation Tracking page.

A copy of this week’s Oregon Court of Appeals opinion is available here and more information on the permits at issue in the appeal is available on Oregon DEQ’s website.  NACWA, as the leading advocacy organization for stormwater agencies, will continue to both track and participate in stormwater cases across the country that could impact MS4 utilities, fighting against the inclusion of numeric effluent limits or other inappropriate requirements in municipal stormwater permits.   For more information on this case or NACWA’s stormwater advocacy efforts, please contact Keith Jones, NACWA’s General Counsel, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .