Washington State requires ports to control stormwater discharges across their entire footprint, though federal rules cover only certain port facilities. According to a recent decision by the Ninth Circuit Court of Appeals, citizens may sue to enforce federal Clean Water Act regulations that require transportation facilities to control stormwater discharges into federal waters. Washington implements the regulations through an Industrial Stormwater General Permit (ISGP) that applies to all facilities that conduct industrial activities that discharge stormwater into a water body.

The federal regulations apply only to those portions of facilities that involve vehicle maintenance, equipment cleaning operations, or airport de-icing operations. Since 2010, however, Washington’s ISGPs have omitted that limiting language. As a result, ISGPs regulate stormwater discharges across entire facilities instead of only those portions specifically covered by federal regulations. As the Ninth Circuit recently held, in Washington “the nature of the facility, not the nature of the discharge, determines whether there is coverage.”

Ports that wish to challenge ISGPs must do so before the Washington State Pollution Control Hearings Board at the permit issuance stage, not in subsequent litigation. The Port of Tacoma did this with the 2020 ISGP. The Washington Court of Appeals reviewed the board’s decision and issued a decision in accordance with the one from the Ninth Circuit. The port’s appeal is pending before the Washington Supreme Court.

With regard to citizen suits, states in the Second Circuit follow a different rule. Connecticut, New York, and Vermont may enact stricter wastewater standards than those mandated by the federal rules, but only the states or the EPA may sue to enforce such standards. Citizen suits are not allowed. This split between federal circuits sets up a potential U.S. Supreme Court action to harmonize the rules nationally.

See Puget Soundkeeper Alliance v. Port of Tacoma, 104 F.4th 95 (9th Cir. 2024).