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Storm water is a major polluter. As one judge put it, “Storm water runoff is one of the most significant sources of water pollution in the nation, at times ‘comparable to, if not greater than, contamination from industrial and sewage sources.’” Storm water “runoff may contain or mobilize high levels of contaminants, such as sediment, suspended solids, nutrients (phosphorous and nitrogen), heavy metals and other toxic pollutants, pathogens, toxins, oxygen-demanding substances (organic material), and floatables.” When it storms or rains, “storm water runoff carries these pollutants into nearby streams, rivers, lakes, estuaries, wetlands, and oceans.” This creates an immediate and dire need to regulate effluent from polluting storm water systems.
Municipal storm water regulation has and is continuing to become a regulatory farce. Sloppy legislative language and short cited court rulings have dulled the tools necessary to curb polluted effluent from contaminating municipal storm water. Due to the legislative carelessness and misguided case law, municipal storm water regulation is treated as almost exempt from the Clean Water Act (CWA) because municipal storm water is not required to strictly comply with water quality standards. This paper proceeds as follows. In part one, the discussion will focus on the regulatory mechanisms of industrial and municipal storm water. Part two will discuss the judicial interpretations of industrial and municipal storm water. Part three discusses the counter arguments to the Ninth Circuit’s decision in Defenders. Finally, part four concludes with the common sense interpretation of municipal storm water regulation.