Litigation under EPA’s Storm Water Priority

EES | Cases by Practice Area


In 1987, Congress amended the Clean Water Act to require the Environmental Protection Agency (EPA) to establish permit requirements for the discharge of storm water. In 1992, EPA adopted storm water regulations, and today most municipalities and most industrial sectors, including construction activities, must have permits for the discharge of storm water.

Problems – Construction and Storm Water Run-off

According to EPA studies, storm water runoff is one of the biggest sources of pollution contaminating the nation’s beaches, rivers, and other waterways. One of the biggest contributors to storm water discharges is construction activities, for example, land development and road construction. During construction, vegetation is removed and earth is moved and exposed to the elements, increasing erosion and runoff.

  • When land is disturbed by construction activities, surface erosion can increase up to 200 times on sites that were formerly pasture and up to 2,000 times on sites formerly forested.
  • As storm water flows over a construction site, it not only picks up sediment, but can pick up other pollutants, like debris, pesticides, petroleum products and chemicals. Absent controls, all of this material can be washed into the nation’s waters and adjoining shorelines and beaches either directly or through storm drains.
  • Sediment-laden discharges to waters results in increased turbidity and decreased oxygen in water, resulting in loss of habitat for aquatic life. Sediment can destroy spawning beds, suffocate fish eggs, and kill fish directly. It can also increase the difficulty in filtering drinking water, resulting in higher drinking water treatment costs.

Many storm water controls are low tech and low cost measures that can make a big difference to the environment. Measures include such things as planning construction projects to reduce the amount of time soil is left exposed and installing relatively simple sediment and erosion control devices, such as silt fences.

Enforcement Actions

For a number of years, one of EPA’s Clean Water Act enforcement priorities has been storm water. Over the last several years, the Environmental Enforcement Section, in partnership with EPA, has brought enforcement actions against a number of entities including the “big box stores” Wal-Mart and Home Depot, against national homebuilders including Pulte, KB Homes, Centex and Richmond, and against the City of Dallas.

Outcome: Under the big box store and homebuilder settlements, Wal-Mart, Home Depot, and the homebuilders must implement company-wide compliance programs at new store or home construction sites to prevent sediment and other pollutants from running off the sites into the nation’s waters. In addition, each company paid a civil penalty to resolve its past violations.

Under the City of Dallas decree, the City is required to implement a variety of programs to reduce the volume of pollution entering the City’s stormwater sewers. Those stormwater sewers discharge the pollutants into rivers, lakes and streams. The settlement also required the City to pay a civil penalty of $800,000 and construct two wetlands along local waterways.


Updated May 14, 2015

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