In Washington, stormwater discharge from industrial facilities, including ports, is generally permitted under the state’s Industrial Stormwater General Permit (ISGP). The ISGP sets standards for prevention, control, and treatment of discharges, imposes sampling and reporting requirements, and specifies an escalating series of corrective actions if a facility’s discharges exceed certain benchmark levels of contaminants.

For more than two decades, ports covered by the ISGP have understood that only the portions of their footprint where “industrial activities” occurred—vehicle maintenance, equipment cleaning, or airport de-icing operations—had to be covered by the port’s ISGP. This understanding was based on the definition of “industrial activity” under federal law adopted by the Washington Department of Ecology in the ISGP.

That has all changed. Under recent decisions by the Washington State Court of Appeals and the federal Ninth Circuit Court of Appeals, if “industrial activity” occurs anywhere within a port’s footprint, the entire footprint is subject to the ISGP. As the Ninth Circuit held, in Washington “the nature of the facility, not the nature of the discharge, determines whether there is coverage.”

This expansive interpretation of “industrial activity” will result in both larger areas and greater numbers of facilities being subject to the ISGP and its sampling, inspection, best management practices, and corrective action requirements. In addition to the increased operational costs associated with ISGP compliance, some facilities may not be able to comply without significant infrastructure improvements.

The Ninth Circuit’s decision also opened the door for increased citizen suit enforcement. Washington’s Water Pollution Act does not include a citizen suit provision. The federal Clean Water Act’s provision authorizes lawsuits only for violations of federal law that are included in state permits. Under the Ninth Circuit’s decision, any permit condition included in the ISGP may be enforced through a citizen suit.

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 may set up a potential US Supreme Court action to harmonize the rules across the nation.

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

This article summarizes aspects of the law and does not constitute legal advice. For legal advice regarding your situation, you should contact an attorney.