By Sara Frase and Tim Schermetzler of CSD Attorneys at Law P.S.

Industrial Stormwater General Permit Legal Update

ISGP – The updates keep coming and they don’t stop coming…

For this Month’s column, I’ve asked one of my colleagues, Sara Frase, to write about the National Pollutant Discharge Elimination System Industrial Stormwater General Permit administered by the Washington Department of Ecology.  This has been a hot topic and subject to active litigation over the past several years, of which Sara has been working on behalf of WPPA to advocate for ports in this space.  Thanks Sara and enjoy all…

Industrial Stormwater General Permit Litigation Updates.  If you have attended one of WPPA’s Environmental Seminars, Spring Meetings, Winter Meetings (nee Annual Meetings), or really, any port meeting that discusses industrial practices on port property over the past decade, you have likely heard murmurings of the Industrial Stormwater General Permit (“ISGP”).  Port commissioners and staff generally fall into one of two camps when the ISGP comes up in conversation: those who are curious about whether the ISGP has relevance for their port and those who are so deeply ingrained in the innerworkings of the ISGP that they could probably recite it to you by memory.

Perhaps that is a bit of an exaggeration, but the importance of the ISGP to ports throughout Washington State really cannot, and should not, be minimized.  Perhaps that is most obvious by the fact that a number of port staff and port commissioners have gotten much too used to seeing my face at WPPA events, providing yet another update on the ongoing litigation surrounding the ISGP – most recently, the appeal of the 2025 ISGP to the Pollution Control Hearings Board (“PCHB”).

What is the ISGP?  In 1974, the Environmental Protection Agency (“EPA”) authorized the Washington Department of Ecology (“Ecology”) to administer the EPA’s National Pollutant Discharge Elimination System (“NPDES”) program in Washington State.  Ecology is also tasked with administering the State Water Pollution Control Act (“WPCA”), which makes it illegal for “any person” to discharge pollutants into waters of the State without a permit.  For industrial stormwater specifically, Ecology decided to enforce both state and federal requirements using a general permit that covers a broad range of activities.  The ISGP administered by Ecology under the NPDES program reflects this dual state and federal function as it is both an NPDES and State Waste Discharge Permit.

Currently, the ISGP applies to approximately One Thousand Two Hundred (1,200) industrial facilities across the State, nearly half of which are transportation facilities.  The ISGP is renewed every five (5) years, with the most recent version having gone into effect on January 1, 2025.  This number includes ports that own or operate marine, intermodal, and rail facilities essential to the movement of goods and passengers throughout Washington State and internationally.

WPPA’s Prior Involvement with Litigation Over the ISGP.  As previously mentioned, the ISGP is both a federal and state permit; however, it is only the federal Clean Water Act (“CWA”) that authorizes what are known as “citizen suits.”  What this means is that lawsuits brought by entities other than the State of Washington may sue for violations of the ISGP in federal court.  Conversely, appeals of the ISGP itself may be brought in State court, beginning with the Pollution Control Hearings Board (“PCHB”), created by the Washington Legislature “to provide for a more expeditious and efficient disposition of designated environmental appeals.”  RCW 43.21B.010; see also RCW 43.21B110 for details as to what matters the PCHB has jurisdiction to hear.

While WPPA has always been acutely aware of litigation over the ISGP as it has moved through the state and federal courts, WPPA became more directly involved in 2018 when it was asked to participate in the federal lawsuit of Puget Soundkeeper Alliance v. APM Terminals Tacoma, LLC, et al. as an amicus curiae (friend of the court) in support of the Port of Tacoma’s position in the case. 561 F.Supp.3d 1113 (W.D. Wash.) (Sept. 15, 2021).  WPPA was joined in its briefing by the Washington Maritime Federation.

WPPA, this time joined by the Pacific Merchant Shipping Association, again submitted briefing as amicus curiae in support of the then Plaintiff-Appellant/Cross-Appellee, Port of Tacoma, when the case was appealed to the Ninth Circuit Court of Appeals.  When the Port of Tacoma, SSA Terminals, LLC, and SSA Terminals (Tacoma), LLC petitioned the United States Supreme Court for a Writ of Certiorari (review of the lower court’s decision), WPPA continued its support of these Associate Members by again filing an Amicus Curiae Brief.  This time, organizations that signed on to WPPA’s brief included the American Association of Port Authorities, the Pacific Northwest Waterways Association, the International Longshore and Warehouse Union Coast Longshore Division, and the California Association of Port Authorities.

Appeal of the 2025 ISGP and Early Reissuance.  Remarkably, during the course of the aforementioned litigation, WPPA members were at the same time preparing themselves for the issuance of the 2025 ISGP.

The 2025 ISGP was issued on December 2, 2025.  Six (6) separate appeals of the 2025 ISGP were filed with the PCHB by the following entities: Puget Soundkeeper Alliance and Spokane Riverkeeper (collectively the “Keepers”); Washington Trucking Associations; SSA Terminals, LLC; BNSF Railway Company; the Northwest Seaport Alliance, Port of Seattle, and Port of Tacoma; and WPPA.  All of the appellants, other than the Keepers, are referred to as the “Permittee Appellants.”

These six (6) appeals—and the fifty-eight (58) legal issues on appeal—were subsequently consolidated under PCHB No. 24-088.  During the approximately two (2) months leading up to the hearing, Ecology and the Permittee Appellants negotiated and successfully executed two (2) partial settlement agreements (the “Agreements”), which can be found on Ecology’s website here.

A three-week Zoom hearing was still held in February 2026, but the only issues argued in the appeal were those of the Keepers, who did not sign on to the Agreements.  On June 16, 2026, the PCHB issued its Findings of Fact, Conclusions of Law, and Order ruling against the Keepers’ appeal and affirming the ISGP.

WPPA was in a unique position throughout the appeal process because, while not an ISGP holder itself, WPPA represents the collective interests of the seventy-five (75) municipal port districts across the State, sixty-nine (69) of which are dues-paying WPPA members.  As such, WPPA could act as the voice for each of its members’ distinct concerns without all sixty-nine (69) of them having to initiate, conduct, and fund their own appeals.  All the while, WPPA staff were kept apprised of what was happening with the appeal so they could then turn around and provide updates to its members.

What’s Next?  A key aspect of the Agreements is Ecology’s early reissuance of the ISGP sometime in Q3 of 2028 as well as a partial stay of those portions of the ISGP subject to the Agreements.  The early ISGP reissuance process will be similar to that which occurs during the ISGP’s regular five (5) year cycle and will include an opportunity for the public to comment on the proposed changes to the permit, as agreed upon in the Agreements.

Meanwhile, litigation involving the 2025 ISGP remains ongoing.  Shortly after the Permittee Appellants and Ecology executed the Agreements, the Keepers filed an appeal with the PCHB (PCHB No. 26-010), arguing that Ecology’s agreement to the partial stay of certain conditions in the ISGP is an illegal attempt to modify the 2025 ISGP.  On June 26, 2026, the PCHB dismissed the Keepers’ appeal, finding that the PCHB has not been granted jurisdiction over this type of case by the Washington State Legislature.

As a result of both PCHB appeals, on July 13, 2026, the Keepers filed an Administrative Procedures Act Petition for Judicial Review of Agency Action in the King County Superior Court (the “Petition”).  To summarize, the Petition asks the Superior Court to (i) rule that the 2025 ISGP is deficient and contract to law; (ii) remand the 2025 ISGP for modification consistent with the Superior Court’s ruling; (iii) set aside the PCHB’s order upholding the ISGP in PCHB No. 24-088 as well as the PCHB’s order dismissing the Keepers’ appeal in PCHB No. 26-010; and (iv) remand Ecology’s partial stay of certain conditions of the 2025 ISGP back to the PCHB for further proceedings.

Thus far, Ecology and all of the Permittee Appellants which were parties to the initial appeal of the 2025 ISGP have appeared in the matter of the Keepers’ Petition.

So, what are ports and other ISGP holders to do in the face of uncertainty as to what the court will do with the Keepers’ appeal, and in anticipation of Ecology’s early reissuance of the 2025 permit?  A few thoughts from the mind of a “paid paranoid”:

• Talk to your legal counsel about what the ongoing litigation means for your business operations.
• Consult an environmental consultant familiar with stormwater permitting.
• Sign up for Ecology listservs and tune in to Ecology presentations regarding progress being made on the reissuance of the ISGP.

Additionally, and yes, this is a shameless plug, but I would of course encourage those affected by current happenings involving the ISGP to register for WPPA’s upcoming Environmental Seminar and listen to me and Mindi Kellar with Northwest Seaport Alliance present on what permittee holders can (and should) be doing to ensure continued compliance with the ISGP.

As always, if you have questions, work with your port’s legal counsel to address your specific questions.  If you have a question for Knowing the Waters, please e-mail Tim Schermetzler at tschermetzler@csdlaw.com.