Puget Soundkeeper Alliance, V. Wa State Dept. Of Ecology

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

PUGET SOUNDKEEPER ALLIANCE, No. 84492-0-I

Appellant, DIVISION ONE
v.

WASHINGTON DEPARTMENT OF UNPUBLISHED OPINION
ECOLOGY, SNOHOMISH COUNTY,
CITY OF SEATTLE, CITY OF
TACOMA, PIERCE COUNTY, CITY OF
BELLEVUE, KING COUNTY, and
WASHINGTON POLLUTION
CONTROL HEARINGS BOARD,

Respondents.

SMITH, C.J. — Puget Soundkeeper Alliance (Soundkeeper) is a

Washington nonprofit corporation dedicated to protecting and preserving the

waters of Puget Sound and the species that live in it. Soundkeeper advocates

for the adoption of policies throughout the Puget Sound watershed that will

protect water quality and habitat health. For many years, it has been a major

voice in the development of municipal stormwater management rules and

regulations, and its contributions and criticisms have at times pushed

Washington to adopt more aggressive protections. Soundkeeper demonstrates

the powerful good that can be accomplished for the environment and our local

waterways by both cooperative and adversarial interactions between government

and private organizations.
No. 84492-0-I/2

In this case, Soundkeeper challenges the permits issued by the

Department of Ecology to municipal stormwater system operators in Washington

State. It points to the existence of streams in the Puget Sound region with

pollutant levels increasingly exceeding standards set by Ecology itself and raises

concerns about high pre-spawn mortality rates in Coho salmon. It asserts that

these ever more polluted streams and the resulting harm from the pollutants

indicate that the current stormwater permits are ineffective and require

restructuring. It argues this is because the permits’ compliance mechanism

allows discharges of some polluted waters from municipal stormwater systems

into protected waters, without counting those discharges as per se violations of

the permits themselves. It contests this compliance mechanism’s conformity with

various state and federal statutes and regulations. The Pollution Control

Hearings Board reviewed Ecology’s permits and upheld them. Soundkeeper now

appeals the Board’s conclusions. We affirm.
FACTS
Municipal Stormwater Systems

This appeal concerns the legality of permits granted by the Washington

State Department of Ecology to various operators of Municipal Separate Storm

Sewer Systems (MS4s) located in Washington State. An MS4 is “a conveyance

or system of conveyances (including roads with drainage systems, municipal

streets, catch basins, curbs, gutters, ditches, manmade channels, or storm

drains)” owned and operated by a municipal entity,1 designed or used for

1 Throughout this opinion, we will refer to the municipal entities which

operate the stormwater systems, and which are party to this case, as MS4s.

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collecting or conveying stormwater, and which is not combined with a sewer. 40

C.F.R. § 122.26(b)(8).

Unsurprising, MS4s are extraordinarily complex systems composed of

many interrelated parts of our built and natural environment. The MS4s party to

this case collect stormwater from across the counties or cities they serve and

discharge that stormwater into local bodies of water at hundreds to thousands of

locations. This water is often—if not always—polluted to one degree or another.

That MS4 discharges are polluted is the result of activities beyond the

control of the entities that own and manage the MS4s. This is unlike other

discharges of water pollution, many of which are the results of discrete

construction, industrial, or other concerns that actively generate the pollutants

they discharge into waters protected by state or federal statute.

This distinction arises from the inherent structure of MS4s. The water that

first enters and then exits an MS4 “comes into contact with essentially all

surfaces exposed to the sky.” In the process it will pick up potential pollutants

that have accumulated on those surfaces, “including soil and other particles,

nutrients, metals, salts, natural and synthetic organic compounds, oil and grease,

etc.” These pollutants originate in a broad range of natural and human activity,

including lawful, everyday activities such as driving, property upkeep, and

business operations.

The history of Seattle’s MS4 is emblematic of MS4s complexity and the

competing purposes they must balance. Drainage infrastructure in what is now

Seattle was originally “built to avert flooding and to protect property and public

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health and safety.” It was not centrally designed and developed, but instead

grew piecemeal as local communities were established and later annexed by the

city government. Nor is it, even now, a single comprehensive system; parts of

Seattle are managed by mixed sewage and stormwater systems, while some are

served only by the MS4 that is party to this case. The quality of the waters into

which the Seattle MS4 drains is therefore partially dependent on Seattle’s

discharges, but also on the activities of others outside of the city’s control.

The result is that MS4s balance multiple purposes, operate

interdependently with each other and with other polluters, compete with other

entities for space and resources, have inherited systems not always well

designed for present purposes, and enjoy only limited control over the source of

the pollutants they discharge. To the degree that they are asked to reduce that

pollution, they alone are given the task of solving the resulting problem caused

by all involved.

Structure of the Permits

Because they discharge into protected waters, MS4s are subject to a

permitting process regulated under federal and state laws, the goal of which is to

ensure that federal and state waters are clean and unpolluted. These permits

are issued by the Washington Department of Ecology and are called “Phase I”

and “Phase II” permits depending on the scale of the MS4 they seek to regulate.

Phase I permits regulate discharges from “large” and “medium” MS4s, and

include permittees such as the cities of Seattle and Tacoma, Clark, King, Pierce,

and Snohomish Counties, the Port of Seattle, the Port of Tacoma, and various

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other similarly sized entities. Phase II permits cover “medium MS4s” throughout

the state, including Bellevue, Spokane, Everett, Yakima County, Thurston

County, and others.2

Under federal law, the permits are re-issued every five years, and as part

of that process their requirements are adjusted as necessary. 33 U.S.C.

§ 1311(d), (m)(3). Ecology issued the most recent versions of the permits on

July 1, 2019. They are very detailed and thorough documents. The two permits

at issue here—Phase I and one Phase II—total over 400 pages.3

In many of their particulars, the permits are identical, including their

general structure. Sections S1 through S3 identify permittees, coverage area,

the basics of what sort of discharge is authorized, and warn that permittees are

responsible for their compliance with the permits’ terms. Sections S6 through S9

establish monitoring and reporting requirements, compliance with “Total

Maximum Daily Load” (TMDL) requirements, and certain permittee-specific rules.

The permits’ core regulatory provisions, at least for the purposes of this appeal,

are located in sections S4 and S5.

2 The size of an MS4 depends on the size of the population it serves.

Those over a population of 250,000 people served are large, those between
100,000 and 250,000 are medium, and those below 100,000 are small. 40
C.F.R. § 122.26(b)(4) (defining large MS4s), (7) (defining medium MS4s), (16)
(defining small MS4s).
3 There are two Phase II permits—one for Western Washington and one

for Eastern Washington. The Eastern Washington permit was not appealed and
is not at issue.

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1. Section S5

We first address Section S5, which imposes requirements on permittees

that, if breached, are addressed through a compliance pathway located in S4.

Jeff Killelea, the Water Quality Program Development Services Section Manager

at Ecology, who led the development of the 2019 permits, describes Section S5

as the “heart” of the permits.

The S5 section of the Phase I permit requires that each permittee

establish a “Stormwater Management Program.” Phase I programs must include

a number of aspects, such as mapping water sources, communicating with other

MS4s and the public, creation of pollutant source control methods, creation of

structural controls, etc. The Phase II programs are similar in most respects, but

some of the more specific requirements are less robust.

The S5 sections of the permits’ 2019 iterations include more and stricter

requirements than previous permits’ S5 sections. For instance, a comprehensive

stormwater management action planning requirement is a new condition

mandating that MS4s “identify retrofits, preferred locations, and land

management strategies to better integrate stormwater management into their

long range plans.” The 2019 Phase I permit now also requires implementation of

structural retrofits using a point system to define appropriate compliance levels.

On the whole, the impact of these and other changes means that the 2019

permits are stricter than their predecessors, in line with an iterative approach that

demands higher standards with every permitting cycle.

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2. Section S4

Section S4—which is identical between the two permits—requires

permittees’ compliance with certain water quality standards and contains the

permits’ enforcement mechanism. It addresses circumstances in which site-

specific water quality violations occur despite compliance with Section S5’s

programmatic requirements.

The core enforcement mechanism of the permits is located in Subsection

S4.F, which dictates what should happen when an MS4’s discharge violates any

of a number of applicable state and federal water standard requirements. The

permittee must notify Ecology “based on credible site-specific information that a

discharge from the MS4 owned or operated by the Permittee is causing or

contributing to a known or likely violation of water quality standards in the

receiving water.” If it determines that the permittee is “causing or contributing to”

an actual water quality violation, Ecology may institute an “adaptive management

response.” This response typically involves imposing new, stricter best practices

requirements. Ecology may also, however, take no additional action if it

determines that the violation is already being addressed through another

enforceable water quality clean-up plan or through implementation of other

permit requirements. Importantly, if the permittee follows this process, a

prohibited discharge does not become a violation of the permit itself.

Thus, S4.F’s compliance pathway “uses a cooperative iterative process to

correct site-specific violations of water quality standards while relying overall on a

broader programmatic process to achieve jurisdiction wide compliance with water

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quality standards over time.” But S4.F “was not intended to be the primary

permit term to achieve eventual compliance with water quality standards on a

programmatic or jurisdiction-wide basis.” The permits as a whole serve that

purpose.

Section S4 has been heavily scrutinized over the years, and was the

subject of a 2008 decision from the Pollution Control Hearing Board (Board),

which oversees Ecology’s permitting process. Puget Soundkeeper All. v. Dep’t

of Ecology, No. 07-021 at (April 2, 2008) (Order on Dispositive Motions:

Condition S4) [https://perma.cc/W66H-DTBL]. In that decision, the Board came

to a number of legal conclusions about the applicability of federal and state laws

and regulations to MS4 permits and remanded the case to Ecology for

modification of S4 in compliance with edits dictated by the Board. Puget

Soundkeeper All.v. Dep’t of Ecology, No. 07-021, at (Aug. 7, 2008) (Findings of

Fact, Conclusions of Law and Order) [https://perma.cc/2ZNG-E2FJ]. Across

multiple permitting cycles, S4 has remained substantially unchanged since that

decision.

This appeal once again challenges S4’s legality.

Origin and History of This Lawsuit

The Washington Association of Sewer and Water Districts initiated this

suit against Ecology on July 29, 2019. The Board consolidated the Association’s

challenge with another filed two days later by the Puget Soundkeeper Alliance. A

number of permittees moved to intervene as respondents, which the Board

allowed. These intervenor-respondents include King, Pierce, and Snohomish

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No. 84492-0-I/9

Counties, and the cities of Bellevue, Seattle, and Tacoma. The Washington

Association of Water and Sewer Districts eventually settled with Ecology, leaving

only Soundkeeper’s challenges.

Soundkeeper’s claims before the Board and on appeal revolve around the

undisputed fact that many of Washington’s waters contain levels of pollutants

that exceed applicable water quality standards. A number of streams in the

Puget Sound region fail to meet requirements under the federal Clean Water Act4

(CWA) and are therefore placed on the “303(d)” list of impaired waters.5 Some of

these streams have been categorized as more, not less, impaired over time, a

process that has occurred despite previous versions of the currently challenged

permits being in place.

Of particular concern to Soundkeeper is the high percentage of deaths—

between 60 and 100 percent—of female Coho salmon in urban streams around

Puget Sound before they are able to spawn. Ecology acknowledges that

stormwater pollution from untreated highway runoff likely contributes to these

mortality rates and that 6PPD-quinone, a chemical associated with tires, is a

possible culprit. Soundkeeper asserts that there is a known, effective solution to

the problem of polluted stormwater: treatment of water with “bio-infiltration”—

having water run through soil and vegetation—before in is discharged into

4 Formally known as the Federal Water Pollution Control Act Amendments

of 1972, 33 U.S.C. §§ 1251 to 1388.
5 The 303(d) list is discussed below in the Federal Water Quality

Standards section.

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No. 84492-0-I/10

protected waters.6

Soundkeeper expresses alarm that no permittee has notified Ecology of

the more recent 303(d) list impairments and their possible effect on salmon per

S4.F. It is also concerned that in response to only one out of 243 S4.F reports

sent to Ecology required any action other than what was already required under

S5 of the permits. It points out that S4 has never been used to require any

additional action by a permittee to address pre-spawn salmon mortality.

Soundkeeper moved for partial summary judgment and Ecology and the

intervening permittees cross-moved. Before its final decision, the Board granted

a joint motion dismissing several of the issues Soundkeeper had raised.7 The

remaining eight issues focused primarily on Section S4.F of the Phase I and

Phase II permits.

Through a December 2021 letter, the Board informed the parties of its

intent to dismiss six of the remaining issues and to hear the remaining two. By a

joint motion, the parties stipulated to the dismissal of the remaining issues and

the Board dismissed them. The Board issued its written final order in March

2022, detailing the reason for its dismissal of the six most hotly contested issues.

Soundkeeper petitioned for judicial review in Thurston County Superior

Court. There, the parties jointly requested that the trial court certify the case to

this court under RCW 34.05.518(2), which allows direct review of an

6 Soundkeeper’s citations to support this point do not appear to be to

sworn evidence but rather to briefing at proceedings below but part of the
Ecology factsheet does appear to support the contention.
7 The joint motion is not in the record.

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administrative agency’s adjudicative proceeding by the Court of Appeals. It

granted their request and Soundkeeper now appeals, assigning error to the

Board’s conclusion that Section S4 of the permits meets state and federal legal

requirements.
BACKGROUND LEGAL PRINCIPLES

Because of the complexity of the federal and state laws regulating MS4s

and the way in which the discretion extended to Ecology affects the standard of

review, we begin by providing an overview of the applicable legal schemes.

Regulatory Context

This regulatory law governing MS4s is complex, the result of many

interrelated state and federal laws and regulations, and has developed a

corresponding wealth of jargon. The following overview summarizes this

structure.

1. Federal Water Quality Standards

Federal water quality regulation is primarily contained within in one law:

the Clean Water Act. The CWA was enacted to “restore and maintain the

chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C.

§ 1251(a). The act prohibits “discharge of any pollutant by any person” from any

“point source”8 into the navigable waters of the United States without prior

8 A point source is usually “any discernible, confined and discrete

conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit,
well, discrete fissure, container, rolling stock, concentrated animal feeding
operation, or vessel or other floating craft, from which pollutants are or may be
discharged.” 33 U.S.C. § 1362(14). MS4s are point sources requiring NDPES
permits. Snohomish County v. Pollution Control Hr’gs Bd., 187 Wn.2d 346, 351-
52, 386 P.3d 1064 (2016). But—thanks to the CWA’s 1987 Water Quality Act

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approval, and establishes a permitting process to provide that approval. 33

U.S.C. § 1311(a); 33 U.S.C. § 1362(12); 33 U.S.C. § 1342(a). The permitting

process is titled the National Pollutant Discharge Elimination System, or NPDES.

33 U.S.C. § 1342. States may request authorization to administer their own

NPDES permits, assuming what would otherwise be the duty of the United States

Environmental Protection Agency (EPA). 33 U.S.C. § 1342(b); 33 U.S.C. §

1251(d). Washington has done so, designating Ecology as the responsible state

agency. RCW 90.48.260(1).

NPDES permit approval is subject to the discharge’s conformity to various

standards. 33 U.S.C. § 1342(a). Permits must generally require application of

the “best practicable control technology [BPT] currently available.” 33 U.S.C.

§ 1311(b)(1)(A). Crucially, however, they must also require the permitholder to

meet “any more stringent” water quality standards, treatment standards, and

compliance schedules9 established under any state or federal law or regulation.

33 U.S.C. § 1311(b)(1)(C). Although the BPT requirement is concerned with

practical limitations, the application of “more stringent” standards may mean that

certain discharges are prohibited regardless of practicality. Defs. of Wildlife v.

amendments to the CWA, discussed below—unlike other point sources, MS4s
are regulated through “general permits” covering an entire geographic area, and
they consequently do not have to seek a permit for every conveyance under their
control that discharges into a protected water. Envtl. Def. Ctr., Inc. v. U.S. Envtl.
Prot. Agency, 344 F.3d 832, 853 (9th Cir. 2003); 33 U.S.C. § 1342(p)(3)(B)(i).
9 A compliance schedule is “a schedule of remedial measures including an

enforceable sequence of actions or operations leading to compliance with an
effluent limitation, other limitation, prohibition, or standard.” 33 U.S.C.
§ 1362(17).

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Browner, 191 F.3d 1159, 1163 (9th Cir. 1999); Puget Soundkeeper All. v.

Pollution Control Hr’gs Bd., 189 Wn. App. 127, 138, 356 P.3d 753 (2015).

“More stringent” water quality standards exist in a number of forms. Under

the CWA, states must designate waters for specific uses, such as propagation of

wildlife or recreation. 40 C.F.R. § 131.10. Based on the designated use, states

must establish “narrative” or “numeric” criteria to create water quality targets. 40

C.F.R. § 131.11; see also 33 U.S.C. § 1313(c). Numeric criteria set acceptable

concentration levels for particular pollutants in waters, “e.g., no more than .05

milligrams of chromium per liter.” Am. Paper Inst., Inc. v. U.S. Envtl. Prot.

Agency, 996 F.2d 346, 349 (D.C. Cir. 1993).10

Narrative criteria are broader and more open to interpretation in any

particular instance, “e.g., no toxic pollutants in toxic amounts.” Am. Paper Inst.,

996 F.2d at 349. They can serve as a means of establishing standards in

instances where numeric criteria have not been set. For instance, Washington

has not set a numeric criterion for 6PPD-quinone, the chemical the parties agree

is likely harming salmon, but application of narrative criteria nonetheless ensures

that it cannot be discharged in unrestricted amounts.

Criteria are met through the application of two regulatory methods: best

management practices and effluent limitations. Best management practices

(BMP), as defined by Washington and federal code, are “schedules of activities,

10 For instance, Washington’s numeric criteria for toxic substances in

surface waters are set out in 40 C.F.R. § 131.45 and WAC 173-201A-240 based
on designations established in WAC 173-201A-200 (fresh waters) and WAC 173-
201A-210 (marine waters).

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prohibitions of practices, maintenance procedures, and other management

practices to prevent or reduce the pollution.” WAC 173-226-030(3); 40 C.F.R.

§ 122.2. They come in many forms, but might include, “treatment requirements,

operating procedures, and practices to control plant site runoff, spillage or leaks,

sludge or waste disposal, or drainage from raw material storage.” WAC 173-226-

030(3). Bio-infiltration, Soundkeeper’s suggested solution to the salmon mortality

problems caused by stormwater runoff carrying 6PPD-quinone, is a form of BMP.

Effluent limitations, on the other hand, are “ ‘restrictions on the quantities,

rates, and concentrations of chemical, physical, biological, and other constituents

which are discharged’ ” into protected waters. Wash. State Dairy Fed’n v.

Ecology, 18 Wn. App. 2d 259, 288, 490 P.3d 290 (2021) (quoting Our Children’s

Earth Found. v. U.S. Envtl. Prot. Agency, 527 F.3d 842, 848 (9th Cir. 2008))

(alterations in original omitted); 33 U.S.C. § 1362(11). They often “consist[] of a

requirement to abide by a specific numeric criterion for a given pollutant,”

ensuring that no more than a particular quantity of that pollutant is discharged.

Dairy Fed’n, 18 Wn. App. 2d at 289-90. Effluent limitations are frequently

imposed through calculation of TMDL, defined in Ecology’s permits as “the

maximum amount of a pollutant that a water body can receive and still meet

water quality standards, and an allocation of that amount to the pollutant’s

sources.”

Under the CWA, each state must identify waters within its boundaries that

have failed to attain applicable water quality standards—whether numeric or

narrative—despite the regulations required by 33 U.S.C. § 1311(b). 33 U.S.C.

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§ 1313(d)(1)(A), (3). The list of polluted waters developed under this section is

known as the “303(d)” list, after the section of the CWA establishing the list. See

Pub. L. No. 92-500 § 303 (enacting the language of 33 U.S.C. § 1313). The

state must establish TMDLs for the pollutants causing those 303(d) waters to

violate water quality standards. 33 U.S.C. § 1313(d)(1)(C). Through this

pathway, no permit may allow a permittee regulated by 33 U.S.C. § 1311 to

discharge more of the pollutants that have caused a 303(d) water to become

impaired into that water.

Permittees not in compliance with their permits may be subject to

governmental enforcement actions. 33 U.S.C. § 1319. Regulators can enforce

the CWA through a range of administrative remedies or by bringing civil or even

criminal actions. 33 U.S.C. § 1319. But the CWA also provides for regulation

through citizen suit, either against the violating permittee or against the agency

charged with administering the Act. 33 U.S.C. § 1365(a). Civil penalties can

reach $25,000 per violation per day. 33 U.S.C. § 1319(d).

The result of this regulatory scheme is that the usual NPDES permit

strictly limits the quantities of pollutants dischargeable into regulated waters.

When specific waters are found to be out of compliance with applicable

standards, NPDES permits that allow polluted discharges into those waterways

ratchet up their requirements, potentially prohibiting discharge of certain

pollutants in any quantity. The sticky wicket for MS4s is that, unlike most

permittees—e.g., a chemical plant or agricultural facility—they do not generate

the pollutants they discharge, and the goal of eliminating the pollutants from

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hundreds and thousands of point sources is a task that can only be remedied

over time.

2. Applicability of Federal Standards to MS4s

Because of MS4s’ complexity, competing purposes, and the separation

between them and the source of the pollutants they carry, treatment of

stormwater discharges was the subject of significant debate in the CWA’s early

years. Defs. of Wildlife, 191 F.3d at 1163. EPA initially exempted stormwater

discharges from the CWA’s requirements. Def. of Wildlife, 191 F.3d at 1163; see

40 C.F.R. § 125.4 (1975). But after the Court of Appeals for the District of

Columbia invalidated this exemption, EPA issued regulations governing

stormwater discharges and, in 1987, Congress passed the Water Quality Act,11

amending the CWA. Defs. of Wildlife, 191 F.3d at 1163.

Under the Water Quality Act amendments, municipal stormwater

discharge permits are subject to the particular provisions of 33 U.S.C. § 1342(p).

Defs. of Wildlife, 191 F.3d at 1163-64. The amendment created a new standard,

the “maximum extent practicable” (MEP) standard. 33 U.S.C. § 1342(p)(3)(B)(iii).

Under it, NPDES permits for MS4s “require controls to reduce the discharge of

pollutants to the maximum extent practicable, including management practices,

control techniques and system, design and engineering methods, and such other

provisions as the Administrator or the State determines appropriate.” 33 U.S.C.

§ 1342(p)(3)(B)(iii). Notably, the Water Quality Act amendments to the CWA do

11 Water Quality Act of 1987,
Pub. L. No. 100–4, 101 Stat. 7
(1987) (codified as amended in scattered sections of 33 U.S.C.).

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not themselves impose the strict compliance with state and federal water quality

standards imposed on NPDES permittees under 33 U.S.C. § 1311(b)(1)(C) and

33 U.S.C. § 1313(d) (TMDLs addressing 303(d) waters).

Following the Water Quality Act amendments, the question became

whether municipal stormwater permittees were subject to both § 1311 (the

original CWA requirements) and § 1342 (the Water Quality Act amendments), or

only the latter. If only the latter, then the many “more stringent” water quality

standards set through code and statute, and discussed above, would no longer

apply to MS4s under the CWA.

In Defs. of Wildlife, the Ninth Circuit held that only the Water Quality Act

amendments applied. 191 F.3d at 1164. After Defs. of Wildlife, NPDES permits

issued to municipal stormwater permittees require different, lesser standards

than typical NPDES permits. 191 F.3d at 1165. Defs. of Wildlife relieves

municipal stormwater permittees of the burden of strict compliance with the

“more stringent” water quality standards, treatment methods, and compliance

schedules otherwise mandated by the CWA. Compare 33 U.S.C. §

1342(p)(3)(B)(i)-(iii) (governing municipal stormwaters) with 33 U.S.C. §

1311(b)(1)(A)-(C) (normal permitting rules).

3. State Water Quality Standards

Washington developed its own water quality standards, separate from and

predating those of the CWA, through the Water Pollution Control Act of 1945

(WPCA), Chapter 90.48 RCW. LAWS OF 1945, Ch. 216; RCW 90.48.010. While

the CWA sets a floor for the regulation of water quality, it explicitly allows states

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to impose more exacting standards. 33 U.S.C. § 1370. State and federal

regulations therefore both apply to Washington waters.

The WPCA declares Washington’s intent “to maintain the highest possible

standards to insure the purity of all waters of the state consistent with public

health and public enjoyment thereof, the propagation and protection of wild life,

birds, game, fish and other aquatic life, and the industrial development of the

state.” RCW 90.48.010. In service of these ends, it makes it “unlawful for any

person to . . . discharge into any waters of this state . . . any organic or inorganic

matter that shall cause or tend to cause pollution of such waters according to the

determination of the department.” RCW 90.48.080. Like the CWA, the WPCA

creates a permitting process that Ecology administers, prohibiting unpermitted

discharge of “waste” into state waters. RCW 90.48.020 (administration); RCW

90.48.160 (permits).

As part of any permit issuance or reissuance, Ecology must “incorporate

permit conditions which require use of all known, available, and reasonable

[technologies and] methods to control toxicants.” RCW 90.48.520. This

requirement is known as the AKART standard.12 Using rulemaking authority

granted to it by the WPCA, Ecology has promulgated regulations expanding on

12 The statute requires “waste disposal permit[s]” for persons conducting

“commercial or industrial operation[s].” RCW 90.48.160. No party challenges
that AKART standards apply to MS4s under Washington law or that references to
“wastewater” throughout Chapter 90.48 RCW include stormwater, though this
has been a point of contention in the past. Puget Soundkeeper All., No. 07-021
(Aug. 7, 2008) (Findings of Fact, Conclusions of Law, and Order: Condition S4)
[https://perma.cc/2ZNG-E2FJ] (concluding stormwater is wastewater under the
WPCA).

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the WPCA’s statutory scheme. See RCW 90.48.035 (rulemaking authority).

Many of these regulations will be discussed in more detail below.

The WPCA’s enforcement mechanisms differ from those of the CWA. Any

permittee in compliance with the terms and conditions of the permits is exempted

from civil and criminal penalties that would otherwise flow from discharges that

violate water quality standards. WAC 173-201A-510(1)(a). Unlike the CWA, the

WPCA does not appear to allow for enforcement other than by Ecology. See

RCW 90.48.420 (“The department of ecology . . . shall be solely responsible for

establishing water quality standards for waters of the state.”). Ecology must,

however, modify permits “when it is determined that the discharge causes or

contributes to a violation of water quality standards.” WAC 173-201A-510(1)(a).

And where a permittee fails or refuse to comply with permit requirements,

Ecology may revoke the permit for that permittee or take direct enforcement

action. WAC 173-226-180(5); RCW 90.48.037 (allowing Ecology to enforce

through legal suit). In this way, Washington law and regulations confer

considerable discretionary authority to Ecology in determining how to structure

and implement Washington’s clean water policies.

Standard of Review

Our analysis of the issues in this case is heavily informed by the

applicable standard of review. Ecology and the intervenor-respondents contend

that Ecology’s decisions concerning the permits’ structure and content should be

reviewed through the deferential “arbitrary and capricious standard.” The tenor

of Soundkeeper’s arguments assumes de novo review.

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No. 84492-0-I/20

The Washington Administrative Procedure Act (APA), chapter 34.05

RCW, governs state court review of administrative agency actions. RCW

34.05.510. It also guides review of decisions made by the Pollution Control

Hearings Board. Port of Seattle v. Pollution Control Hr’gs Bd., 151 Wn.2d 568,

587, 90 P.3d 659 (2004).

Under the APA, we may grant relief where the reviewed agency

erroneously interpreted or applied the law. RCW 34.05.570(1)(c); RCW

34.05.570(3)(d); Port of Seattle, 151 Wn.2d at 587. We interpret the meanings of

statutes de novo. Port of Seattle, 151 Wn.2d at 587. But where a statute is

ambiguous and it falls under the agency’s expertise—here, either Ecology’s or

the Board’s—we treat the agency’s interpretation of the statute with deference so

long as it does not conflict with the statute. Port of Seattle, 151 Wn.2d at 587.

We accord Ecology’s interpretations of the federal CWA and related regulations

“great weight” because it is entrusted with the Act’s administration. Port of

Seattle, 151 Wn.2d at 594 (addressing statute), 599-600 (addressing regulation).

Where Ecology and the Board agree “we are loath to override the judgment of

both agencies, whose combined expertise merits substantial deference.” Port of

Seattle, 151 Wn.2d at 600. We may also grant relief if an agency’s determination

is “arbitrary or capricious.” RCW 34.05.570(1)(c); RCW 34.05.570(3)(i).

The party challenging an administrative decision bears the burden of

demonstrating its invalidity. RCW 34.05.570(1)(a). If the reviewing court is

concerned with an administrative decision made on summary judgment, as is the

case here, “the reviewing court must overlay the [Administrative Procedure Act]

20
No. 84492-0-I/21

standard of review with the summary judgment standard.” Verizon Nw., Inc. v.

Emp’t Sec. Dep’t, 164 Wn.2d 909, 916, 194 P.3d 255 (2008). Summary

judgment is appropriate where undisputed facts viewed in the light most

favorable to the nonmoving party entitle the moving party to judgment as a matter

of law. Verizon Nw., Inc., 164 Wn.2d at 916. Review is limited to the record

before the agency; here, the Board. RCW 34.05.558.

These standards mean that the most important step in our review of an

agency action is determining whether the agency exercised a degree of

discretion in the interpretation or implementation of a relevant law or regulation.

Where it did, its decision stands unless the interpretation conflicts with a statute’s

meaning or the implementation was arbitrary and capricious.
ANALYSIS

Soundkeeper assigns error to the Board’s conclusion “that Section S4 of

the [permits] met the requirements of state and federal law.” It contends that “the

Permits have not been stringent enough to meet the basic requirements of either

the Clean Water Act or Washington law with stormwater problems worsening and

with stormwater continuing to cause and contribute to violations of water quality

standards.”

Soundkeeper identifies five corresponding legal issues. Two are clearly

stated: “Whether 40 C.F.R. § 122.4413 applies to the Permits” and whether

13 40 C.F.R. § 122.44 is the federal regulation governing the what

standards are imposed in NPDES permits.

21
No. 84492-0-I/22

Ecology “violated its obligations to review and assess Section S4 . . . when it

reissued the Permits to ensure [S4 meets the applicable legal standards].”

The remaining three issues, however, are less straightforward. They

question:
(1) whether Section S4 “fails to ensure that the discharges authorized by
the Permits will not cause, have the reasonable potential to cause, or
contribute to a violation of a water quality standard,”
(2) whether Section S4 fails to comply with requirements to apply AKART
and MEP standards, and
(3) whether Section S4 fails to ensure compliance with limits more
stringent than AKART “or water quality based effluent limits as
necessary to meet Washington water quality standards or total
maximum daily load cleanup plans.”

These issue statements focus on the applicability of standards and laws to

Section S4 alone, rather than the permits as a whole. Soundkeeper’s framing is

notable because, at least facially, the permits appear to explicitly incorporate all

of the standards Soundkeeper contends they fail to ensure. The specifics of their

argument are somewhat difficult to follow because the issues fail to cite to

particular statutory or regulatory requirements, incorporate a standard of review,

or reference the particular alleged facts leading to violations, and they fail to

clarify whether the challenge is to the permits’ drafting or enforcement.14

14 Issue one, for instance, incorporates language found throughout 40

C.F.R. § 122.44(d)(1): “cause[], have reasonable potential to cause, or
contribute[] to,” without citing the regulation. See 40 C.F.R. § 122.44(d)(1)(i), (iii),
(iv) and (vi). Issue three’s mention of limits “more stringent” than AKART draws
from similar language in 33 U.S.C. § 1311(b)(1)(A), but it does not clearly place
in question that provision’s applicability to MS4s. Issues one and three ask
whether Section S4 fails to “ensure” discharges are not violative, while issue two
asks whether the section fails to “comply” with AKART and MEP standards.
Whether this difference in terminology is meaningful is uncertain.

22
No. 84492-0-I/23

Soundkeeper’s briefing does not help to clarify its arguments. It often

discusses the practical effects of the permits and Ecology’s discretionary

enforcement and drafting choices. But despite this, it acknowledges that it is not

challenging Ecology’s enforcement of the permits’ provisions. Instead, it focuses

on arguing that the permits’ allowance of any discharge by MS4s into impaired

waters15 without the permittee being automatically out of compliance means that

the permits are necessarily legally inadequate. In this context, it assails what it

characterizes as Ecology’s “truncated” use of Section S4, criticizing Ecology’s

decisions to trust to conditions already imposed under Section S5 to eventually

cure water quality issues rather than imposing more restrictive conditions through

an adaptive management plan. In short, though Soundkeeper’s issue statements

raise what are framed as pure questions of law, much of its argument focuses on

matters that appear to be within Ecology’s discretion.

On the whole, Soundkeeper appears to contend that the permits must

both prohibit polluted discharges into impaired waters and hold in violation any

permittees making such discharges. In light of this, we understand Soundkeeper

to raise two issues, which encompass all of Soundkeeper’s five issue statements:
(1) Does state or federal law or regulation require Washington’s
stormwater permits to hold out of compliance any MS4 that
discharges a pollutant into a water impaired by that pollutant?
(2) If not, has Ecology arbitrarily and capriciously drafted the permits
by excluding such a provision?

To answer these questions, we first address the statutory and regulatory

provisions cited and discussed by Soundkeeper that might impose a bright-line

15 I.e., those waters on the 303(d) list.

23
No. 84492-0-I/24

rule that stormwater permits must make any discharge into 303(d) waters a

permit violation. We conclude that there is no such rule. We also conclude that

Ecology did not act arbitrarily and capriciously by failing to include such a rule of

its own volition.

Existence of a Bright-Line Rule

Soundkeeper relies on a number of federal and state statutes and

regulations to support the notion that there is a bright-line rule forbidding

allowance of any discharge into impaired water. Our review of those statutes

and regulations indicates the opposite. Rather, the statutes and regulations each

grant Ecology crucial discretion either not to require strict effluent limits, or to

enforce limits in the manner it finds most reasonable. Because Ecology enjoys

this discretion, its actions must be analyzed not de novo, as Soundkeeper

argues, but through an arbitrary and capricious lens.

At the outset, it is worth mentioning that the permits, by their own terms,

require compliance with a great number of standards. Subsection S4.A broadly

prohibits the discharge of any pollutants into Washington waters that would

violate “any” water quality standard. Subsection S4.B more specifically prohibits

discharges that would violate portions of Washington code governing surface-

and ground-water quality standards and sediment management, and federal

code on human health-based criteria.16 Subsection S4.C requires reduction of

16 Groundwater quality standards are set by Chapter 173-200 WAC,

surface water quality standards by Chapter 173-201A WAC, sediment standards
by Chapter 173-204 WAC, and the federal human health-based criteria are found
in 40 CFR 131.45.

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No. 84492-0-I/25

pollutants per MEP. Subsection S4.D requires use of AKART. And Subsection

S4.E requires compliance with all water quality requirements included in the

permit itself. Separately, the permit imposes effluent limits in the form of TMDLs.

What the permits do not do under Section S4 is make any discharge whose

pollutant levels exceed these limits a per se permit violation.

1. 33 U.S.C. § 1311

Since language in Soundkeeper’s third issue statement—specifically its

mention of “more stringent” standards—echoes language in 33 U.S.C. § 1311,

we first, briefly address whether that statute applies to MS4s. We conclude that

it does not.

Whether MS4s are subject to 33 U.S.C. § 1311 was directly addressed by

Defenders of Wildlife—a federal case that does not directly bind us. 191 F.3d at

1164. Two Washington cases have cited Defenders of Wildlife, but neither

directly engaged with its holding because neither concerned a municipal

stormwater permit. Puget Soundkeeper All., 189 Wn. App. at 137-38 (concerning

BP refinery oil spill); Dairy Fed’n, 18 Wn. App. 2d at 288-89 (concerning state

waste discharge general permit for concentrated animal feeding operations). It

has not, therefore, yet been adopted by the Washington courts.

Defenders of Wildlife concluded that § 1311(b) does not bind MS4s. 191

F.3d at 1164-65. It looked at language in 33 U.S.C. § 1342 that required

industrial actors to comply with § 1311, by incorporation requiring that industrial

stormwater discharges apply with “any more stringent limitation[s].” Defs. of

Wildlife, 191 F.3d at 1164-65 (citing 33 U.S.C § 1342(p)(3)(A)). It contrasted this

25
No. 84492-0-I/26

explicit imposition of § 1311’s standards on industrial actors with Congress’s

silence concerning § 1311’s application to municipal actors. Defs. of Wildlife,

191 F.3d at 1164-65 (citing 33 U.S.C § 1342(p)(3)(B)(iii)). Municipal actors such

as MS4s are still regulated, but only by the MEP standard. 33 U.S.C

§ 1342(p)(3)(B)(iii). Reasoning that Congress would not have explicitly

incorporated § 1311 against one actor and failed to do so against another, it

therefore concluded that MS4s are not bound by § 1311. Defs. of Wildlife, 191

F.3d at 1164-5. It also reasoned that to hold otherwise would render § 1342 all

but superfluous, since the “more stringent limitation[s]” of § 1311 would almost

inevitably control over the MEP standard. Defs. of Wildlife, 191 F.3d at 1165-66.

In addition, Defenders of Wildlife addressed arguments by intervening

stormwater permittees that EPA lacked the power to impose 33 U.S.C. § 1311’s

greater requirements on them. 191 F.3d at 1166-67. It concluded that the EPA

has the power to impose requirements such as those in 33 U.S.C. § 1311 at its

discretion. Defs. of Wildlife, 191 F.3d at 1166-67. This is because the Water

Quality Act’s amendments to the CWA require MEP standards in addition to “

‘such other provisions as the Administrator . . . determines appropriate.’ ” Defs.

of Wildlife, 191 F.3d at 1166-67 (alteration in original) (quoting 33 U.S.C. §

1342(p)(3)(B)(iii). But those standards are not required by 33 U.S.C. § 1311

itself.17

17 Soundkeeper asserts that “State case law has further confirmed that

NPDES permits such as the Permits here may be issued only when the
discharge in question will comply with water quality standards.” It cites to Port of
Seattle, 151 Wn.2d at 603. That case, however, did not concern MS4 permits,
but instead an NPDES permit awarded to the Port of Seattle for its activities

26
No. 84492-0-I/27

We follow Defenders of Wildlife with respect to both these holdings. Its

analysis is thorough and convincing, and the Board has already relied on it,

including when drafting the language of Section S4.F, which entitles Defenders of

Wildlife’s reasoning to deference. Puget Soundkeeper All., No. 07-021

[https://perma.cc/2ZNG-E2FJ]. 33 U.S.C. § 1311(b)(1)(C)’s applicability to MS4s

was superseded by the passage of 33 U.S.C. § 1342(p)(3)(B), which directly

addresses MS4s and creates the MEP standard.

2. 40 C.F.R. § 122.44(d)

We next consider the applicability of 40 C.F.R. § 122.44, the federal

regulation governing the content of NPDES permits. 40 C.F.R. § 122.44(d)

directs permitting agencies to include effluent limits in their NPDES permits under

certain circumstances. Soundkeeper contends that this regulation applies to

MS4s, asserting that “[t]here are no exceptions to the requirements of 40 C.F.R.

§ 122.44 . . . for stormwater.” We disagree.

40 C.F.R. § 122.44 controls the requirements that permitting agencies

must include in their NPDES permits. Paragraph (d) mandates that permits

include “any requirements in addition to or more stringent than promulgated

effluent limitations guidelines or standards under sections 301, 304, 306, 307,

expanding an airport runway at SeaTac Airport. Port of Seattle, 151 Wn.2d at
579-80. Its references to requirements of federal law that, for instance, “state-
issued NPDES permits [must] comply with 33 U.S.C. § 1311 . . . [which] requires
effluent limitations” do not, as a result, apply to this review of stormwater permits.
Port of Seattle, 151 Wn.2d at 603. Rather, it’s holdings must be understood as
discussing the requirements that apply to non-stormwater NPDES permits.
Soundkeeper’s various citations to Dairy Fed’n, 18 Wn. App. 2d 259 are
not persuasive for the same reason.

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No. 84492-0-I/28

318, and 405 of the CWA necessary to . . . [a]chieve water quality standards

established under section 303 of the CWA.” 40 C.F.R. § 122.44(d)-(d)(1).

Further subdivisions of sub-paragraph (d)(1) describe more specific triggers for

when permits must impose numeric effluent limits, including “[w]hen the

permitting authority determines . . . that a discharge causes, has the reasonable

potential to cause, or contributes to an in-stream excursion above the allowable

ambient concentration of a State numeric criteria.” 40 C.F.R. § 122.44(d)(1)(iii).

Soundkeeper evokes this language throughout its briefing, even when not

directly referencing § 122.44.

The plain language of 40 C.F.R. § 122.44(d) indicates that it does not

apply to MS4s. This is because the language that prompts the paragraph’s

application to any given NPDES permit is the relevance of “any requirements in

addition to or more stringent than” other guidelines. 40 C.F.R. § 122.44(d)

(emphasis added). The italicized language is precisely the terminology used in

33 U.S.C. § 1311(b)(1)(C), the portion of the CWA that serves as the pathway to

impose effluent limits. As decided by Defenders of Wildlife, though, this section’s

relevance to MS4s has been negated by the passage of 33 U.S.C. § 1342. We

see no reason to treat 40 C.F.R. § 122.44(d)’s use of the same terminology

differently. We instead read it as incorporating by reference the “more stringent”

standards imposed by 33 U.S.C. § 1311, along with those standards’ application

only to non-MS4 NPDES permittees.

If there were any ambiguity, the history of EPA’s NPDES regulatory

scheme further supports this interpretation of 40 C.F.R. § 122.44(d). Much of the

28
No. 84492-0-I/29

regulation’s language originates in rules first promulgated in 1980, before the

passage of the 1987 Water Quality Act amendments to the CWA, which

addressed the issue of applying strict effluent limits to MS4s. 45 Fed. Reg.

33,449 (May 19, 1980). The regulation’s original language, in keeping with

existing statute, simply mandated permits’ inclusion of any requirements

necessary to “achieve water quality standards established under section 303 of

CWA.” 45 Fed. Reg. 33,449.

After the Water Quality Act became law, EPA promulgated new rules.

Most notably, in January 1989, it promulgated 40 C.F.R. § 122.26. 54 Fed. Reg.

255 (Jan. 4, 1989). Entitled “Storm water discharges,” this regulation

comprehensively lays out the permitting process for MS4s. 40 C.F.R. § 122.26.

In June of the same year, EPA modified 40 C.F.R. § 122.44, adding seven new

sub-paragraphs to 40 C.F.R. § 122.44, including paragraph (d), upon which

Soundkeeper relies. 54 Fed. Reg. 23,872 (June 2, 1989). Unlike § 122.44,

§ 122.26 does not extensively describe the standards permits must incorporate.

40 C.F.R. § 122.26. Instead, it describes the permit application process, the

parts of the application, and what sort of entity must receive stormwater permits.

40 C.F.R. § 122.26.

On this issue the Board concluded in prior proceedings in this case that 40

C.F.R. § 122.44(d) does not apply to municipal stormwater systems. In support,

it cited to Defenders of Wildlife and asserted that the regulation “derives its

authority from” 33 U.S.C. § 1311, not from the stormwater-specific 33 U.S.C.

§ 1342. Agreeing with Ecology and the intervenor-respondents, it ruled that 40

29
No. 84492-0-I/30

C.F.R. § 122.26 is instead the section of the C.F.R. that sets MS4 permit

conditions.

Affording the Board and Ecology the deference they are due when

interpreting the laws they administer, we mostly agree. But because portions of

§ 122.44 were promulgated after the passage of the Water Quality Act

amendments, it is possible that their authority derives at least in part from 33

U.S.C. § 1342, contrary to the PCHB’s conclusion. Relevantly, 40 C.F.R. §

122.44(k)(2) explicitly mentions stormwater discharges, meaning that we cannot

read § 122.44 as a whole to exclude regulation of MS4s. More specifically,

though, 40 C.F.R. § 122.44(k)(2) mentions stormwater discharges to specify that

they may be regulated through the use of best management practices. This

provision has a clear bearing on our analysis of § 122.44, and further supports

reading paragraph (d) as not applying to MS4s. Because of this, to the degree

that the Board was categorically denying that § 122.44 may be applied to MS4s

and holding that only § 122.26 applies, we cannot agree.18 But the Board is

correct that § 122.44(d) does not demand the imposition of strict effluent limits on

MS4s, nor that any discharge violating an effluent limit is a violation of the

permits themselves.

We therefore conclude that as to 40 C.F.R. § 122.44’s paragraph (d), the

Board did not err.19 Our conclusion is not unique. As recently stated by the

18 Whether the Board adopted the narrower or broader of these holdings is

not clear.
19 We note that even if we were to conclude that 40 C.F.R. § 122.44(d)

applied to MS4s, our analysis would not end. Instead of strict effluent limits,

30
No. 84492-0-I/31

Superior Court of New Jersey’s Appellate Division, addressing § 122.44: “The

overarching federal law for MS4s—33 U.S.C. § 1342(p)(3)(B)(iii)—is broad and

flexible. It does not require [the permitting agency] to implement numeric effluent

limitations; BMPs are appropriate.” Delaware Riverkeeper Network v. New

Jersey Dep’t of Envtl. Prot., 463 N.J. Super. 96, 121, 229 A.3d 875 (App. Div.

2020). We agree.20

3. RCW 90.48.520

Soundkeeper cites to one Washington statute that might require MS4

permits to impose strict, numeric effluent limitations. Because, however, this

legal theory was not clearly raised in front of the Board and has not been

comprehensively briefed on appeal, we decline to consider it.

RAP 2.5(a) allows us to “refuse to review any claim of error which was not

raised in the trial court.” It includes several exceptions to this principle, none of

another portion of the regulation, sub-section (k), allows permits to require only
best management practices where “numeric effluent limitations are infeasible.”
40 C.F.R. § 122.44(k)(3). Paragraph (k) is, as mentioned, the only part of the
regulation that mentions stormwater management. This sub-paragraph’s
existence carves out substantial space for agency discretion to be exercised, a
space seemingly tailor-made to function as a pressure relief valve for MS4s.
20 In passing, Soundkeeper cites to 40 C.F.R. § 131.12(a) when asserting

that “Ecology must . . . require additional pollutant controls where necessary to
achieve water quality standards because the agency must ensure that pollutants
in stormwater do not cause or contribute to a violation of water quality standards
and do not degrade waters.” It does not quote the provision, which is one of four
citations made.
40 C.F.R § 131.12 requires states to develop “antidegradation” policies.
Paragraph (a), cited by Soundkeeper, has four sub-parts. 40 C.F.R §
131.12(a)(1)-(4). Soundkeeper does not specify in what manner it relies on this
provision, and we therefore do not address it. See Palmer v. Jensen, 81 Wn.
App. 148, 153, 913 P.2d 413 (1996) (“Passing treatment of an issue or lack of
reasoned argument is insufficient to merit judicial consideration.”).

31
No. 84492-0-I/32

which is relevant here. RAP 2.5(a). Though our ability to review issues not

raised below is permissive, we seldom exercise our discretion to reach an issue

that has not first received treatment by the trial court. State v. McFarland, 127

Wn.2d 322, 332-33, 899 P.2d 1251 (1995). This practice encourages efficient

use of judicial resources, affords the trial court the opportunity to correct any

errors, guarantees that counsel and parties are not blindsided by theories raised

well into a case, and ensures that we remain a court of review, rather than

addressing arguments in the first instance. See State v. Robinson, 171 Wn.2d

292, 304-05, 253 P.3d 84 (2011) (discussing issue preservation rule).

Here, insufficient argument was made below and on appeal to justify our

review of RCW 90.48.520’s relevance in the present case. A portion of the

WPCA, RCW 90.48.520, reads:
In order to improve water quality by controlling toxicants in
wastewater, the department of ecology shall in issuing and
renewing state and federal wastewater discharge permits review
the applicant's operations and incorporate permit conditions which
require [AKART] to control toxicants in the applicant’s
wastewater. Such conditions may include, but are not limited to
[effluent limits and TMDLs]. . . . In no event shall the discharge of
toxicants be allowed that would violate any water quality standard,
including toxicant standards, sediment criteria, and dilution zone
criteria.

(emphases added). Soundkeeper implicitly relies on this last sentence to assert

that the permits must prohibit allowance of any discharge that would violate a

water quality standard. But it relies on it only obliquely, not quoting or discussing

the relevant language, asserting: “Washington law provides that in no event shall

the discharge of toxicants be allowed to violate Washington water quality

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No. 84492-0-I/33

standards, RCW 90.48.520, a prohibition that is repeated in Section S4.A of the

Permits.”

Meanwhile, this statute received almost no treatment in front of the Board.

The Board did not consider RCW 90.48.520 beyond citing to it as the source of

the AKART standard. And the closest Soundkeeper came to relying on it as an

authority that binds Ecology’s enforcement discretion is in a broad, and broadly

supported, introductory sentence:
Neither Ecology nor Intervenors dispute that applicable
permitting law dictates that National Pollutant Discharge Permits
("NPDES") must include controls necessary to ensure that the
discharges authorized by those permits, here stormwater
discharges by cities and counties, do not cause or contribute to an
exceedance of water quality standards and that state law requires
that stormwater permits apply "all known and reasonable
technology" to control and reduce pollutants in stormwater. RCW
90.48.010; WAC 173-201A-510(1) and 173-226-070; 40 C.F.R. §
122.44(d); see also RCW 90.48.520, and WAC 173-216-020 and
110(1)(a).

Soundkeeper’s scattershot citation does not suffice to preserve an issue.

Because RCW 90.48.520’s impact on Ecology’s discretion was not preserved,

we decline to address it.21

21 Though we decline to review this issue, we do not read RCW 90.48.520

as Soundkeeper does. Instead, we would read “allowed” to reflect only the
legislature’s intent to impose adherence to water quality criteria on MS4s. We
would not read it as speaking to Ecology’s discretion in matters of enforcement.
This better matches the WPCA’s grants of significant authority to Ecology. To
adopt Soundkeeper’s reasoning would result in MS4s, by their very nature, being
almost per se out of compliance with Washington law.

33
No. 84492-0-I/34

4. Washington Administrative Code

Soundkeeper refers to WAC 173-201A-510(1), (3), and (4) and WAC 173-

226-070, but none of these administrative code provisions supports its

arguments. We address each in turn.

WAC 173-201A-510(1) directs that “[w]aste discharge permits, whether

issued pursuant to [NPDES] or otherwise, must be conditioned so the discharges

authorized will meet water quality standards.”22 But this requirement is not

absolute: “No waste discharge permit can be issued that causes or contributes to

a violation of water quality criteria, except as provided for in this chapter.” WAC

173-201A-510(1) (emphasis added).

WAC 173-201A-510(3) addresses “[n]onpoint source and stormwater

pollution.” Sub-paragraphs (a) and (c) are directed at non-point sources

pollution, and therefore do not apply to MS4s, which are point source polluters.

Snohomish County v. Pollution Control Hr’gs Bd., 187 Wn.2d 346, 351-52, 386

P.3d 1064 (2016). Another, relevant part of the paragraph directs that “[b]est

management practices shall be applied so that when all appropriate

combinations of individual best management practices are utilized, violation of

water quality criteria shall be prevented.” WAC 173-201A-510(3)(b). Taken

alone, this might support Soundkeeper’s arguments. But the same sub-part goes

on to say that “[i]f a discharger is applying all best management practices

22 While these regulations do not say exactly what criteria or water quality

standards apply, they exist in the same chapter as the designations and numeric
criteria developed under the CWA. See, e.g. WAC 173-201A-600 (for fresh
waters) and WAC 173-201A-610 (for marine waters).

34
No. 84492-0-I/35

appropriate or required by the department and a violation of water quality criteria

occurs, the discharger shall modify existing practices or apply further water

pollution control measures, selected or approved by the department.” WAC 173-

201A-510(3)(b) (emphasis added). In this way, as previously held by the Board,

it explicitly grants Ecology the discretion to decide how it will enforce its permits

where a violation has occurred; Section S4.F, the compliance pathway, mirrors

this enforcement model.

WAC 173-201A-510(4) likewise does not require strict effluent limits. The

closest it comes is sub-paragraph (c), which says that “[f]or the period of time

during which compliance with water quality standards is deferred, interim effluent

limits shall be formally established.” WAC 173-201A-510(4)(c). But these limits,

the sub-paragraph quickly clarifies, are left to “the best professional judgment of

the department” and “may be numeric or nonnumeric.” WAC 173-201A-

510(4)(c).

The next regulation cited by Soundkeeper, WAC 173-226-070, concerns

general permit effluent limitations. Its first sub-paragraph, (a), allows that

limitations “may” be imposed to ensure compliance with AKART. WAC 173-226-

070(1). And it directs that they “shall” be incorporated into a general permit “if

such limitations are necessary” to comply with water quality standards. WAC

173-226-070(2)(a). But it leaves Ecology the discretion to determine when such

measures are necessary. WAC 173-226-070(2)(a)(i).

The same paragraph’s second sub-part, though, says that

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No. 84492-0-I/36

Water quality-based effluent limitations must control all
pollutants or pollutant parameters which the department determines
are or may be discharged at a level which will cause, have the
reasonable potential to cause, or contribute to an excursion of state
ground or surface water quality standards.

WAC 173-226-070(2)(b). The language “will cause, have the reasonable

potential to cause, or contribute to” a violation of water quality standards matches

the language found in 40 C.F.R. § 122.44(d)(1)(i). But even if this provision, read

alone, might create a strict requirement that Ecology must impose strong effluent

limits, WAC 173-226-180(1)(c) grants Ecology considerable discretion in

determining schedules and methods of enforcement. It allows Ecology to create

permit conditions as applicable to achieve water quality standards “[b]y any

. . . method deemed appropriate by the department.” WAC 173-226-180(1)(c).

This catchall provision therefore serves to ensure that Ecology has discretion in

the manner of its enforcement.

Whether the Permits Are Arbitrary and Capricious

Lastly, we address Soundkeeper’s arguments that Ecology acted

arbitrarily and capriciously when it exercised its discretion in drafting the permits.

First, we consider Soundkeeper’s assertion that Ecology failed to review the

permits for compliance with the various applicable standards, and specifically

failed when it readapted section S4.F without amendment. Second, having

determined that no statutory or regulatory provision creates a bright line rule

requiring Ecology’s MS4’s permits to hold out of compliance any permittee that

discharges pollutants in excess of effluent limits, we turn to whether the permits

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were arbitrarily and capriciously drafted because they exclude such a

requirement.

Arbitrary and capricious actions are “ ‘willful and unreasoning and taken

without regard to the attending facts or circumstances.’ ” Port of Seattle, 151

Wn.2d at 589 (quoting Wash. Indep. Tel. Ass’n v. Wash. Utils. Transp. Comm’n,

149 Wn.2d 17, 26, 65 P.3d 319 (2003)). But “[w]here there is room for two

opinions, and the agency acted honestly and upon due consideration, [the] court

should not find that an action was arbitrary and capricious, even though [it] may

have reached the opposite conclusion.” Port of Seattle, 151 Wn.2d at 589.

A party challenging an agency action under this standard therefore bears

a heavy burden of proof and persuasion. Soundkeeper has not met its burden.

1. Re-adoption of S4 Without Amendment

Soundkeeper contends Ecology failed to review or assess the permits’

Sections S4 for compliance with AKART, MEP, C.F.R. § 122.44, or various

portions of the WAC. It also contends that Ecology has admitted to not

conducting this review. We disagree on both counts.

First, we disagree that Ecology has admitted that it failed to conduct a

review. Soundkeeper’s only supporting citation is an interrogatory answer

asserting relitigation of Section S4 was estopped by the Board’s 2008 decision.

This does not constitute an admission of the sort Soundkeeper represents.

Moreover, Soundkeeper’s assertion is contradicted by the record.

Ecology “made the AKART and MEP findings as to the Permits as a whole,”

according to Jeff Killelea, who lead the reissuance. The record includes redlined

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versions of the 2019 permits that track every change made from the last iteration;

though the permits’ general structure survives, few paragraphs remain

untouched, and some portions are entirely new. For instance, Section S5 now

includes the comprehensive stormwater management action planning

requirement, a novel imposition on the permittees. Furthermore, Ecology

solicited and responded to public comments during the permits’ development.

Section S4 survived relatively unscathed—though not totally without alteration—

because Soundkeeper relied on the Board’s previous approval of section S4, and

was not “aware of any change in circumstance since [the Board’s decision] that

would warrant significantly altering” section S4.

Ecology’s decisions while drafting the permits were therefore not willful

and unreasoning, nor were they made without regard to the attending facts or

circumstances. Instead, after careful consideration, Ecology focused on

strengthening the Section S5 conditions, the heart of the permits, and relied on

Section S4 to serve its continuing purpose as a corrective tool.

2. Arbitrary and Capricious Drafting

Finally, we must decide whether the existence of more Washington waters

on the 303(b) list and the permits’ authorization of some levels of pollutant

discharge into those waters without making that discharge a permit violation is

arbitrary and capricious. We conclude that it is not.

The permits are the result of a multi-decade iterative process. They are

hundreds of pages long, the result of detailed back and forth with the community

through the comment process, and have been the subject of years of litigation,

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much of it involving Soundkeeper itself. Ecology has devoted a great deal of

attention to the question of how to permit MS4s, and is sensitive to the many

practical limitations on their operators’ abilities to address the pollutants they

discharge. To bring Washington’s waters in ever greater compliance with water

quality standards, they have crafted an iterative permitting system that seeks to

impose ever greater requirements on permittees. The permits are therefore an

attempt to—albeit more slowly than Soundkeeper and many others may wish—

make sustained progress in improving our state’s water quality.

But a permit system that aims for incremental improvement is not willful

and unreasoning and taken without regard to the attending facts or

circumstances, especially when it comes to application of standards concerned

with what is “reasonable” (AKART) and “practicable” (MEP). These words, after

all, leave ample room for discretionary decision-making. Instead, this system of

iterative permits is an attempt to take the many facts and circumstances that

attend MS4s into account and craft a structure that accomplishes sustained

progress in the face of great complexity.23

Nor has Soundkeeper demonstrated that Ecology’s use or enforcement of

the permits is arbitrary and capricious, or in some way reflects back on the permit

conditions to render them impermissible. Soundkeeper relies heavily on the fact

that Ecology has seldom used S4 to impose requirements above those already

23 The parties debate whether, in analyzing the permits’ compliance with

applicable standards, we should look only at Section S4, or to the permits more
broadly. It is a distinction without a difference. Section S4.F incorporates the
whole of the permits by allowing Ecology to consider whether a site-specific
violation will be remediated through the application of any existing measures.

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imposed by S5. Characterizing this as a lackadaisical approach and contrasting

it with the increasing presence of certain streams on the 303(d) list, it contends

that Ecology’s failure to take advantage of S4 to impose stricter requirements is

an indication of S4’s insufficiency. But Soundkeeper admits that it is not,

procedurally, challenging whether specific enforcement actions are arbitrary or

capricious. if it were, without thorough review of the reasons for Ecology’s

reluctance to take advantage of Section S4 to impose stricter requirements, we

could not conclude that Section S4’s enforcement is somehow infirm.

We affirm.

WE CONCUR:

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