Peeling back the Pavement - POLIS Water Sustainability Project

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CASE STUDY 7
PROGRESSIVE LEGISLATION IN ACTION: UNITED STATES
CLEAN WATER ACT AND SOUTH AUSTRALIA STORMWATER
MANAGEMENT AUTHORITY
The United States’ Clean Water Act (CWA) and South Australia’s recent amendments to
the Local Government Act provide two good examples of action by senior government
on stormwater management. While the law is only one aspect of good governance, it
can catalyze significant change and create an environment that enables positive action.
The United States’ Clean Water Act
The CWA is the primary federal law in the United States regulating discharges of pollutants
into U.S. waters. It establishes national quality standards for surface waters
and penalizes violators. When the CWA was signed into law in 1972 it was hailed as
landmark legislation—and has enabled significant improvements to the quality of U.S.
water. The original act introduced the National Pollutant Discharge Elimination System
(NPDES), a permit system for regulating point sources of pollution.
Urban runoff and industrial stormwater discharges were originally excluded from the
NPDES program. However, a series of court rulings through the 1980s expanded the NP-
DES to include stormwater discharges both from urban storm sewer systems (MS4) and
industrial sources as part of the permit program. The MS4 permits require regulated
municipalities to use best management practices to reduce pollutants in discharges to
the "maximum extent practicable."
As a result of providing national standards and practices for the regulation of stormwater,
the CWA is considered to be a key driver for the widespread implementation
of green infrastructure and best practices of stormwater management in parts of the
United States. The proposed Green Infrastructure for Clean Water Act of 2009 aimed to
further support uptake of green infrastructure across the country by creating "Centers
of Excellence" for green infrastructure research, establishing a green infrastructure
program at the Environmental Protection Agency (EPA), and authorizing the issuance of
grants for green infrastructure projects. This bill never became law, but does foreshadow
the trend to more comprehensive approaches to green infrastructure and their
critical link to progressive stormwater management.
Many have acknowledged that the CWA is becoming obsolete. To address some of these
issues the EPA recently initiated a law reform process to establish a program to reduce
stormwater discharges from newly developed and redeveloped sites and make other
regulatory improvements to strengthen its stormwater program. Another change proposed
by the National Academy of the Sciences involves introducing a watershed permitting
structure that would put the authority and accountability for stormwater discharges
at a more local level. A municipal lead permittee, such as a city, would work in partnership
with other municipalities in the watershed as co-permittees. Permitting Authorities
(designated states or the EPA) would adopt a minimum goal in every watershed to avoid