The Stormwater Problem


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Did Congress intend for rainwater runoff to be regulated under the Clean Water Act? Image by Alex Khimich

In 1972, the citizens of the United States became aware that they were causing environmental degradation, and began to speak out.

Congress listened, and among several pieces of landmark environmental legislation, passed the Clean Water Act (CWA). Although the CWA was originally vetoed by President Nixon, the veto was overridden by Congress, and the Act became law on October 18, 1972.

About the Clean Water Act of 1972

The goal of the CWA was to make waters “fishable and swimmable” within a reasonable amount of time.

Additional details include:

  • Waters protected were “waters of the United States.”
  • The prime targets of the CWA were point sources of pollution.
  • Most “point sources” were easy to recognize: industrial waste discharges, wastewater treatment plants, and a few other places such as animal feedlots. A point source is something you could monitor, whose pollutants you could measure, and at whose facility you could build some kind of treatment facility, and see a real improvement.

The CWA stated that it was unlawful to discharge pollution from a point source into waters of the United States without a permit. This resulted in a system of permits being developed, called the National Pollutant Discharge Elimination System (NPDES). All sorts of existing facilities had to apply for these permits, and eventually had to start controlling their discharge of pollutants.

Was Stormwater Included in the CWA?

The CWA did not specifically address stormwater, but why not? Casual observation would suggest that the Congress did not intend for stormwater to be included. After all, rain and snow falls everywhere, and when in sufficient quantity, runoff is the result. Clearly rain falling on a broad area could not possibly be a point source. Since the CWA only addressed point sources, stormwater must be exempt, so the EPA proceeded on that basis. The thought at the time was:

  1. Stormwater is not a point source.
  2. It’s just rainwater that hits the ground; how can it be a source of pollution?

However, runoff from broad areas eventually finds its way into conveyances, such as ditches and storm sewers. It is possible to collect samples from them, and to monitor the quality of the stormwater, so they are clearly point sources, so, some would argue, they are covered in the Clean Water Act.

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