Raining On The Cities’ Parades

Posted on July 22, 2014 by Charles F. Becker

Every city of any size wants development.  Some prefer commercial over residential, but they share the common belief that growing is the best way to survive.  The problem that arises, however, is nature. 

Development is, necessarily, hard surfaces.  It is rooftops, streets and driveways.  In other words, it is impervious area.  When rain hits the impervious area, it must be diverted, collected and pushed downstream.  While attempts can be made to allow it to soak into the ground, the reality is that there is simply no way to make up for all of the new impervious area without a great deal of planning, preparation and expense. 

Most attorneys who practice in the area of water regulation have received a call from a business or homeowner that is located at the “bottom of the hill.”  These entities are the ones who are feeling the effects of the urban development.  They have noticed that over the past five or ten years, they have been receiving more and more water to the point that they are now flooding on a routine basis.  They ask the obvious question:  Who is at fault?  Who can pay me for the destroyed basement, the flooded parking lot or the months of work stoppage while repairs are made?

In most states, riparian law prohibits the upstream neighbor from altering the water flow from his/her property in a way that adversely affects the next door neighbor.   But that does not provide a solution when it is the cumulative effect of many upstream neighbors, all of which have been issued permits from the city, that is the root of the problem.

As was recently reported, the stormwater runoff question was called in a recent series of class action cases filed in Illinois by an unlikely plaintiff, the Illinois Farmers Insurance Company.  In the suits, the insurance carrier alleged that 200 cities in Illinois had negligently maintained the stormwater system, had failed to remedy a known dangerous condition and had undertaken an unlawful “taking” in that the government had appropriated the properties of others to use as diversion and retention basins.  The carrier sought to recover amounts it had paid out under flood claims made by their insureds.

Interestingly, about fifty days after filing, Farmers Insurance filed a notice to dismiss the action.  The carrier said that it had successfully brought important issues to the attention of the respective cities and counties and that it hoped to continue a constructive conversation with the cities to build stronger, safer communities.  As one would expect, the spokesman for the cities believed that the dismissal was because the carrier recognized it did not have sufficient grounds for the suit. 

There are some things that local governments are particularly suited to do: manage solid waste, ensure the timely delivery of electricity and coordinate the development and maintenance of streets, for example.  These are matters that potentially affect everyone within the city limits and for which everyone must pay.  There is no better example of this than addressing stormwater that lands on every property in the city.  Having a system in place that safely carries the stormwater away from buildings cannot be done by any single landowner.  And regulating the bigger picture -- building the necessary stormwater infrastructure while encouraging development -- is uniquely within the purview of the city.

It would appear that the proverbial warning shot has been fired across the bow.  If cities are going to encourage activity that significantly exacerbates the stormwater problem, they may also be charged with protecting those that are affected by the fallout from those activities.  For this problem, time, without action, is only going to make the problem worse and the solution more expensive. And counting on the next case being voluntarily dismissed is a lot like hoping the rain won’t fall.      

EPA’s RDA Math: 3 + 9 ≠ 1

Posted on June 20, 2014 by David Van Slyke

In a surprising turn of events, on March 12, 2014 EPA Regions 1, 3 and 9 each simultaneously but separately responded, and each in a somewhat different way, to three virtually identical NGO petitions asking those Regions to use their Clean Water Act (“CWA”) Residual Designation Authority (“RDA”) to require that stormwater discharges from impervious surfaces at existing commercial, industrial and institutional (“CII”) sites be permitted under CWA Section 402.  The three petitions were filed in July 2013 by several different and somewhat overlapping consortia of environmental organizations.

The three Regions’ responses were all signed by their respective Regional administrators, each was worded differently, and each included a somewhat similar -- yet somewhat different --explanatory enclosure that detailed the basis of each respective Region’s response.

EPA Region 3’s response is a flat out denial of the petition, citing existing tools and programs already in place to address stormwater pollution (e.g., MS4 permits, TMDL implementation and strong state programs).  The enclosure with the Regional Administrator’s letter denying the petition also states that “Region III declines to begin a process for categorical designation of discharges from CII sites to impaired waters since … the data supplied by the Petitioners to support the exercise of RDA is insufficient.”  The enclosure does note that if the existing programs ultimately do not meet their objectives, alternate tools, including RDA, will need to be considered.

Similarly, EPA Region 9’s response “declines to make a Region-wide designation of the sources” in the petition specific to Region 9.  That response also concludes in the enclosure that “we currently have insufficient information to support a Region-wide designation” of the CII sites specified in the petition, “that effective programs are already in place that address the majority of the sites identified in the petition,” and that the Region will keep designation in their toolbag as they “continue to evaluate currently unregulated sources of stormwater runoff.”

However, Region 1’s response states that it “is neither granting the petition … nor is it denying the petition.”  Instead, the Region is going to evaluate individual watersheds in its six states to look at the nature and extent of impairment caused by stormwater, and then “to determine whether and the extent to which exercise of RDA is appropriate.”

Given the identical language in certain portions of all three of the Regional response enclosures (e.g., Statutory and Regulatory Background; Petition Review Criteria), it is clear that EPA Headquarters was in the thick of the discussions regarding the responses to these three RDA petitions.  However, the apparent autonomy afforded each Region in determining how to deal with the issue is remarkable, and the discussions ultimately may have centered (as they often do at EPA HQ) on resource allocations nationally and within each Region. 

The responses of Regions 3 and 9 imply that their current respective paths, with time, will get results without diverting resources.  EPA Region 1 appears to more fully embrace RDA as a near-term viable tool to more aggressively control stormwater runoff from CII sites.  Apparently, the New England regulators’ successful experience with the Long Creek Watershed RDA and their efforts relative to the RDA process for the Charles River has only whetted their appetite for further candidate areas at which to employ this model to address impaired stormwater. 

Whether the NGOs will seek judicial relief from the denial of their Petitions, whether the states in the USA’s upper right hand corner will be supportive of EPA New England’s continued utilization of this tool, as well as how this issue ultimately will be played by EPA HQ, is fuzzy math.

EPA Finalizes Revisions to Stormwater Permitting Rule for Construction Sites

Posted on April 21, 2014 by Daniel Riesel

 

New EPA Rule to Have Broad Implications for Construction Industry; Describes Required Best Management Practices for Stormwater

 

EPA recently finalized revisions to the effluent limitations rules for the Construction and Development (“C&D”) point source category under the Clean Water Act. The revisions will take effect on May 5th, and reflect the terms of a settlement agreement between EPA and the Wisconsin Builders Association, the National Association of Home Builders, and the Utility Water Act Group. See Wisconsin Builders Association v. EPA, No. 09-4413 (7th Cir. 2012). 

The groups challenged EPA’s 2009 Effluent Limitations Guidelines for the Construction and Development Industry, known as the 2009 C&D Rule, arguing that the rule was unworkable and reflected incorrect calculations, and that compliance could cost stakeholders up to $10 billion annually.

The new revisions to the C&D rule eliminate the numeric limitations for turbidity in stormwater discharges from construction sites, in favor of non-numeric effluent controls and best management practices for reducing the effects of erosion and scour on water quality.  EPA had previously included numeric limitations for turbidity in its 2009 C&D rule but had stayed implementation of those limitations as a result of several legal challenges to the rule. 

The C&D rule has wide-ranging applicability, as it typically covers construction activities such as clearing, grading, and excavating at sites where one or more acres of land will be disturbed.  Improperly managed soil at construction sites can easily be washed off during storms and has the potential to negatively impact nearby water bodies. 

Under the stormwater permitting rule, construction site owners and operators are generally required to:

  • implement erosion and sediment controls;
  • stabilize soils;
  • manage dewatering activities;
  • implement pollution prevention measures;
  • provide and maintain buffers around surface waters;
  • prohibit certain discharges, such as motor fuel and concrete washout; and
  • utilize surface outlets for discharges from basins and impoundments.

The new revisions to EPA's stormwater permitting standards may have implications for states that have issued construction-related stormwater permits since 2009. For projects in New York State, for example, the Department of Environmental Conservation Construction General Permit (“CGP”) expires in 2015; any necessary updates to the CGP resulting from the EPA C&D rule are likely to be incorporated into the revised CGP permit due in 2015.

Retroactive Stormwater Permitting – Coming to a Parking Lot Near You?

Posted on September 18, 2013 by David Van Slyke

On July 10, 2013, several different consortia of environmental organizations simultaneously filed petitions with three EPA Regional Offices asking the respective Regional Administrators to make determinations under the Clean Water Act (“CWA”) that unpermitted stormwater discharges from impervious surfaces at existing commercial, industrial, and institutional sites be required to obtain stormwater permits and to conduct remedial actions.  The three petitions (Region 1, Region 3, Region 9), jointly filed by American Rivers, Conservation Law Foundation (“CLF”) and Natural Resources Defense Council (along with different regional NGOs on each petition), ask EPA to use its CWA Residual Designation Authority (“RDA”) to require property owners in EPA Regions 1, 3 and 9 to capture and treat their stormwater runoff, which the petitioners allege is impairing waterbodies in those parts of the U.S.

Currently, in the absence of residual designation, only new construction projects, industrial sites falling within certain limited categories, and municipal stormwater sewer systems are required to obtain stormwater permits and manage stormwater runoff.  The Petitioners allege that stormwater discharged from impervious surfaces on commercial, industrial, and institutional sites are significant sources of pollutants – specifically, metals (lead, copper and zinc), sediments, phosphorus, nitrogen, and oxygen-demanding compounds that cause water body impairments – and therefore should be regulated.   

In 2008, CLF successfully petitioned EPA to use RDA to require stormwater discharge permits for existing impervious surfaces in an urban/mall area near Portland, Maine.  Property owners with an acre of more of impervious surface in that watershed are now required to control their stormwater runoff either on an individual basis (by retrofitting their property to control pollutants in runoff) or by obtaining coverage under a general permit and paying an annual fee per acre of impervious cover.  A similar NGO petition was granted by EPA Region I with regard to limited areas within the Charles River watershed near Boston.

The current petitions represent an effort to force expansion of EPA stormwater runoff control regulation in New England, the Mid-Atlantic States and California/Nevada/Arizona.  The petitioners recommend remedial actions such as conservation of natural areas, reducing hard surface cover, and retrofitting urban areas with features that detain stormwater runoff and treat pollutants in stormwater. 

EPA has 90 days to act on the petition, although action within this time frame is doubtful given the scope of the requests and the pace at which EPA has acted upon other much more limited RDA petitions.  With the very recent U.S. District Court decision in American Farm Bureau v. EPA upholding the Agency’s Chesapeake Bay TMDL for nitrogen, phosphorus and sediment, however, EPA may feel somewhat more emboldened to embrace these broad-reaching petitions.  To date, however, the Agency has been mum regarding the petitions.

Court Rules EPA Cannot Set TMDL For Stormwater

Posted on April 30, 2013 by Ridgway Hall

On January 3, 2013, the District Court for the Eastern District of Virginia ruled that EPA lacks the statutory authority to set a Clean Water Act (“CWA”) total maximum daily load (“TMDL”) for “stormwater flow rates” as a surrogate for sediment deposition. Virginia Dep’t of Transportation et al v EPA et al.  EPA has decided not to appeal.  The case has received national attention because of its implications for other TMDLs that use surrogates. This article will discuss the decision and its significance for the TMDL and water quality regulatory regime.

The relevant statutory framework is CWA Section 303, under which each state establishes water quality standards for waters within its boundaries.  These consist of a designated use (trout fishing, contact recreation, etc.) and numerical or narrative “water quality criteria” necessary to support that use.  For “impaired waters” where the criteria are not being met, the state must set a TMDL (think “pollution budget”) for each pollutant for which the criteria are exceeded, and implement a “planning process” leading to achievement.  Where the state fails to act, or sets a TMDL which EPA regards as insufficient, CWA Section 303(d)(2) directs EPA to set the TMDL.

Accotink Creek is a 25 mile tributary to the Potomac River in Virginia, in which the benthic organisms were impaired, primarily because of sediment deposited by stormwater running off impervious urban and suburban areas.  In April 2011, after Virginia failed to set a TMDL, EPA set one which limited the flow rate of stormwater into Accotink Creek to 681.8 cu ft/ acre-day.  The court said that the parties agreed that “sediment is a pollutant, and that stormwater is not” (Slip op. 3). While EPA’s brief contains a fallback argument that stormwater can be viewed as a “pollutant”, it did not dispute that stormwater flow was being used as a surrogate for sediment.  Thus the question addressed by the court was whether EPA has the statutory authority to set a TMDL for a “surrogate” which is not itself a “pollutant”. 

EPA has used surrogates in a number of circumstances where, in its view, the surrogate would provide appropriate reduction of pollutants, and would be either easier to measure or provide other benefits (such as, in this case, reduction of stream bank scouring caused by heavy stormwater discharges), or both. The court rejected EPA’s argument that since the CWA does not expressly address the use of surrogates, EPA’s use of them should be upheld as reasonable “gap-filling”, consistent with the broad remedial objectives of the CWA, and entitled to substantial Chevron step 2 deference. The court held instead that because the CWA instructed EPA to set TMDLs for “pollutants”, not “surrogates”, the statute was clear.  The court distinguished EPA’s use of surrogates in this case from other instances  in which surrogates have been used under other CWA provisions (notably Sections 301, 304 and 402) where EPA appears to have greater latitude.

EPA and states have used stormwater surrogates in TMDLs in Connecticut, Missouri and North Carolina. They have also used other types of surrogates, such as impervious surface area limits and secchi disc readings.  Some of those have been challenged, and this decision will no doubt provide ammunition for those who oppose their use.  Nationally, however, this amounts to a very small percentage of the TMDLs that are in place, even if one focuses only on sediment (for which, the court noted, EPA has issued approximately 3700 TMDLs).

In addition, this ruling will have no effect whatever on EPA’s permitting of  industrial and municipal stormwater  discharges, including municipal separate storm sewer systems (“MS4s”), or its ongoing development of stormwater regulations, because these activities are expressly authorized under CWA Section 402(p).  This is especially important, because EPA and many states now recognize stormwater as a major source of contamination and water quality impairment.  For a thoughtful article on this subject and emerging approaches, see Dave Owen, Urbanization, Water Quality, and the Regulated Landscape82 U. of Colo. L. Rev.  431 (April 2011).

Accotink Creek: Innovative TMDLs Down the (Storm) Drain?

Posted on January 11, 2013 by David Van Slyke

On January 3, 2013, an EPA-set TMDL for Accotink Creek (a Fairfax County, Virginia tributary of the Potomac River) was invalidated on the grounds EPA exceeded its statutory authority when it attempted to regulate, via the TMDL, a Clean Water Act pollutant – sediment – by instead regulating a surrogate non-pollutant – stormwater flow.  The opinion granted plaintiff’s motion for judgment on the pleadings; in a separate order Judge O’Grady vacated the Accotink Creek TMDL and remanded the matter to EPA for further consideration.

Utilizing the two-step Chevron statutory interpretation analysis, the court found the first of the two criteria had been met:  Congress had addressed in unambiguous language the precise question at issue “… and its answer is that EPA’s authority does not extend to establishing TMDLs for nonpollutants as surrogates for pollutants.”  While directly acknowledging he did not need to reach the second Chevron criterion (whether the agency’s reading of an ambiguous statute is “permissible”), Judge O’Grady nonetheless noted in some detail that “there is substantial reason to believe EPA’s motives go beyond ‘permissible gap-filling.’”

Based upon EPA’s own pleadings, the opinion notes it appears the Agency could have set a TMDL based upon the underlying problem – sediment in the creek – rather than pursuing a surrogate approach.
In recent years, EPA has been pursuing so-called “innovative” TMDLs in an attempt to address stormwater’s contribution to impaired watersheds.  In particular, those TMDLs purport to set load limits based upon various surrogate approaches, including such things as the percentage of impervious cover (“IC”) allowed in the impacted watershed, or (as with Accotink Creek) stormwater flow rates.  While the Accotink Creek TMDL was in EPA Region 3, New England’s Region 1 seems to be in the forefront of this approach and currently has at least three stormwater-source TMDLs in place (including two so-called IC-TMDLs), as well as others in development. 

Given the extensive resources EPA has invested in trying to manage stormwater impacts to impaired streams (see e.g., TMDLs to Stormwater Permits Handbook (Draft Nov 2008)), the Virginia Dept. of Transportation case is clearly a significant setback for the surrogate approach propounded by the Agency.  Whether the United States appeals the decision or retreats and re-evaluates its initiatives in this area is yet to be determined.  Whichever way EPA decides to go, communities dealing with impaired watersheds certainly will need to pay close attention.

What Ever Happened to Reasonable Further Progress?

Posted on August 8, 2012 by Robert Falk

Under the federal Clean Water Act (CWA), most municipalities in the United States are now required to have National Pollutant Discharge Elimination System (NPDES) permits for discharges of stormwater/urban runoff.  As intended by Congress, both the U.S. Environmental Protection Agency (EPA) and authorized state NPDES permit writers originally took a programmatic approach relative to the requirements they put into such Municipal Separate Storm Sewer Systems or “MS4” permits.  Over time, though, municipalities have, in various ways, been required to address water quality standards more directly, including where such standards are expressed quantitatively. 

In California, this has manifested itself in the issuance of MS4 permits containing provisions called “Receiving Waters Limitations,” which, among other things, preclude the permitted municipal stormwater discharges from “causing or contributing to a violation of an applicable water quality standard.”  Since this ambitious goal is a tall order that likely cannot be met without the construction of large, capital-intensive detention and treatment facilities for which no funding is available, other language contained in these MS4 permits has instructed the municipality that if “exceedances of water quality standards persist,” they must evaluate and submit plans to improve their stormwater management programs to address the situation and then implement such plans and improvements according to a schedule they propose – an “iterative process” that envisions reasonable further progress towards the achievement of water quality standards over time and which inherently recognizes that resource and feasibility constraints may inform the pace of that progress.

Last year, in NRDC v. County of Los Angeles, et al., 636 F. 3d 1235 (9th Cir. 2011), the U.S. Court of Appeals ruled that demonstrating compliance with the iterative process language in these MS4 permits did not create a safe harbor and shield a municipality from direct enforcement of the Receiving Water Limitations themselves, including by means of a citizens’ suits.  The U.S. Supreme Court recently granted cert. in this case, raising a glimmer of hope for municipalities that a reasonable further progress approach might somehow be restored.

Unfortunately, the High Court may well not speak directly to this issue notwithstanding its practical import for municipalities.  Its cert. grant instead requested briefing and argument on the more unusual and academic issue of whether water that flows from one portion of a river that is navigable water, through an MS4 or other engineered channel, and into a lower portion of the same river is “discharge” from an “outfall” requiring an NPDES permit.  As its cert. grant itself suggests, this is an issue the U.S. Supreme Court likely already addressed in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004).  Accordingly, if the Ninth Circuit’s decision is reversed on this basis and without a discussion of the broader issues that caused it to arise, it will be left to Congress, EPA, or state permit writers to decide if they are willing to restore a reasonable further progress approach to municipal stormwater permitting.

More Changes Coming In Stormwater Regulation

Posted on July 10, 2012 by Charles F. Becker

"And I wonder, still I wonder, who'll stop the rain."
 Creedence Clearwater Revival
 
As environmental issues go, stormwater regulation is not a high priority for many environmental practitioners. Maybe it should be, because EPA seems to be obsessed by it. In the last year, among other things, EPA has:

•    Issued a new construction general permit to regulate stormwater discharges (and got involved in litigation that forced it to withdraw the regulations regarding a numeric effluent limit);
•    Developed a template designed to help builders write their stormwater control plans;
•    Filed a Notice of Intent to revise the stormwater regulations to exempt discharges from logging roads; and
•    Created an action plan to address stormwater runoff in the Chesapeake Bay watershed (over some objection).

On the litigation front, cases involving  stormwater compliance have been popular. Of the five environmental cases from the Ninth Circuit that sought (and have been granted) review by the U.S. Supreme Court for the next term, three of them relate to stormwater regulation.

For residential and commercial developers, stormwater regulations have been expensive to address, but 20 years of practice have allowed many of them to adapt to the existing requirements. EPA's attempt to introduce numeric effluent limits in the new permit caused a few moments of panic until EPA was forced to withdraw them.

However, a change was made in the permit that has gone unnoticed and has the potential to impact the cost of construction.  The new requirements for stormwater discharges at construction sites can be found at 40 C.F.R. Part 450. At Section 450.21, there are requirements relating to “effluent limitations reflecting the best available practicable technology available.” Buried in this section is a fairly innocuous provision that simply requires the developer and builder to, “unless infeasible, preserve topsoil.”

The reason to preserve topsoil at construction sites is two-fold. First, it has more organic material than denser soils so it allows faster growth of vegetation which, in turn, works to slow down the runoff of stormwater from a site. Second, it acts like a sponge to soak up the rain before it is allowed to run into a gully or ditch and, eventually, to a stream or river. For development of a construction site, however, topsoil has a serious drawback – it's in the way. Topsoil does not provide a solid enough base for roads or buildings and, therefore, the developer frequently finds it necessary to scrape the property of all topsoil before installing any streets, driveways or permanent structures.

While I cannot speak to the rest of the country, in the Midwest, this typically means that the topsoil is removed and is often not replaced, but is used for berms around the site. Respreading it is too costly and would usually affect the final grade of the development.  Rather, when it comes time to put vegetative cover on the open areas, sod (with its own layer of topsoil) is used.  The new permit requirement will change that practice.  The definitional problem that will need to be addressed by every state is the meaning of "preserve" as used in the permit.

Perhaps the term means that areas of a development that are not going to have a structure or street should not have the topsoil removed. As a practical matter, that would be impossible. Virtually every development site of any size requires grading to even the slopes and to account for drainage. The term might mean that whatever topsoil was in existence prior to the disturbance of the site, would need to be returned to the site. As a practical matter, this would be difficult to do. Some areas of a site might have a few inches of topsoil, while other areas might have several feet. Grading in anticipation of replacing the topsoil with what was preexisting would, at least arguably, be infeasible.

As the NPDES Permit for each state comes up for renewal, the issue of how to comply with this requirement will need to be addressed. The permits could simply incorporate the language into the terms of the revised permit, but this would provide virtually no guidance to developers or, more importantly, to the MS4 cities that will be called upon to enforce the requirement.

In Iowa, the General Permit for Construction Sites will need to be updated on October 1, 2012. The Iowa Department of Natural Resources has spent considerable time pondering this problem and has come up with a solution. The IDNR has decided to create, in essence, a safe harbor for compliance. The proposed rule provides that disturbed areas that will not have streets, driveways or structures located on them will require a minimum of four inches of topsoil (which can include the topsoil found in the sod). This amount of topsoil fits well with other building requirements and is a significant sponge for purposes of soaking up rainwater. There is an exception to the four inch requirement for those sites which did not have four inches of topsoil prior to disturbance. If a developer believes that the site has less than four inches of topsoil, he/she can complete a soil survey prior to disturbing any soils and, if the topsoil is less than four inches at any given location, the developer is only required to return that amount of topsoil at the conclusion of the development.

The Iowa solution is far from ideal. While it has the advantage of providing certainty, it does so at what may be a very steep cost. Estimates have not yet been made on the additional cost of returning topsoil to each lot, but there will certainly be added expenses that will add to home ownership costs at a time that the industry needs to be finding ways to reduce costs. On the other hand, it is preferable to an undefined requirement that a developer “preserve topsoil unless infeasible,” which simply invites litigation.

Over the course of the next twenty-four to thirty-six months, virtually every state will need to address this issue. If EPA chooses to make stormwater compliance a priority, and there is every indication that it will, the new permits will result in a significant change in the way developments are built and priced. Adding these costs to help reduce what amounts to less than 1% of the surface water contamination problem is questionable, but it's here. Since we're not going to stop the rain, or the EPA, I would suggest that we need to help our state regulatory agencies come up with a reasonable, and workable, solution.

Stormwater Permits for Logging Roads? Muddied Waters.

Posted on June 4, 2012 by David Van Slyke

So let me get this straight.  In Northwest Environmental Defense Center v. Brown, the United States took the position (as an amicus) that, under EPA’s long-standing silviculture rule, NPDES permits are not required for stormwater runoff from logging roads that ends up in ditches and culverts, and that such runoff is not associated with industrial activity.  The 9th Circuit rejected that position and a number of parties (not including the United States) combined to file two different petitions for certiorari with the Supreme Court. 

But in its subsequent amicus curiae brief to the Supreme Court, the United States urged the Court to reject the cert petitions -- despite continuing to insist that, on the merits, the 9th Circuit erred by not giving deference to EPA’s interpretation of its own regs.   The United States’ rationale?  Three in number:  (1) “no square circuit conflict exists;” (2) Congress has placed a short term (through September 30, 2012) moratorium on EPA implementation of the 9th Circuit decision and bills (H.R. 2541; S. 1369) on the issue are pending in both houses of Congress; and (3) EPA issued a Notice of Intent (the day before the United States filed its amicus brief) that it planned to amend its Phase 1 stormwater rules to clarify that stormwater discharges associated with logging roads did not require an NPDES Permit. 

So, er, um, the timber industry should hope that the Congressional moratorium gets extended…, or one of the bills pending before Congress providing relief on this topic gets enacted…, or EPA puts its nascent rulemaking efforts into overdrive to promulgate amended Phase 1 Stormwater rules before the moratorium expires or a bill is enacted…, or the Court rejects the United States’ position, hears the case and provides some guidance. 

The road ahead is muddy, at best.   

A Combined Superfund and Stormwater Rant

Posted on July 7, 2010 by Seth Jaffe

Sometimes, the practice of environmental law just takes my breath away. A decision issued earlier last month in United States v. Washington DOT was about as stunning as it gets. Ruling on cross-motions for summary judgment, Judge Robert Bryan held that the Washington State Department of Transportation had “arranged” for the disposal of hazardous substances within the meaning of CERCLA by designing state highways with stormwater collection and drainage structures, where those drainage structures ultimately deposited stormwater containing hazardous substances into Commencement Bay -- now, a Superfund site -- in Tacoma, Washington.  

I’m sorry, but if that doesn’t make you sit up and take notice, then you’re just too jaded. Under this logic, isn’t everyone who constructs a parking lot potentially liable for the hazardous substances that run off in stormwater sheet flow? 

For those who aren’t aware, phosphorus, the stormwater contaminant du jour, is a listed hazardous substance under Superfund. Maybe EPA doesn’t need to bother with new stormwater regulatory programs. Instead, it can just issue notices of responsibility to everyone whose discharge of phosphorus has contributed to contamination of a river or lake.

The Court denied both parties’ motions for summary judgment regarding whether the discharges of contaminated stormwater were federally permitted releases. Since the Washington DOT had an NPDES permit, it argued that it was not liable under § 107(j) of CERCLA. However, as the Court noted, even if the DOT might otherwise have a defense, if any of the releases occurred before the permit issued – almost certain, except in the case of newer roads – or if any discharges violated the permit, then the Washington DOT would still be liable and would have the burden of establishing a divisibility defense. 

If one were a conspiracy theorist, one might wonder if EPA were using this case to gently encourage the regulated community to support its recent efforts to expand its stormwater regulatory program. Certainly, few members of the regulated community would rather defend Superfund litigation than comply with a stormwater permit.

You can’t make this stuff up.

Stormwater Discharges From Construction Activity: What Next From EPA?

Posted on August 10, 2009 by Seth Jaffe

Construction and development companies praying for an economic recovery next year have something else to worry about: pending new EPA regulations regarding stormwater discharges from construction activities – and claims from environmental groups that EPA’s proposal isn’t stringent enough.

EPA issued a proposal on November 28, 2008. That proposal is complex, but the aspect of it that has received the most attention is the requirement that certain construction sites greater than 30 acres meet numerical turbidity limits (specifically, 13 nephelometric turbidity units (NTUs), which I had to include in this post just because it sounds so cool). Developers have opposed the numeric limits; the National Association of Home Builders estimates that the cost to comply would be $15,000 to $45,000 per acre.

On the other hand, the NRDC and Waterkeeper Alliance have threatened to sue EPA if EPA does not revise the propose rule to include post-construction controls as part of the rule. EPA has stated that it is not planning to do so. It’s not obvious that NRDC and Waterkeeper Alliance have the better of this specific debate, but the argument regarding post-construction controls is similar to the ongoing discussion in Massachusetts and elsewhere regarding the need for ongoing stormwater controls at properties other than industrial facilities that are already regulated.

The issue is not going to go away.  EPA is under a deadline to issue the rule by December 1, 2009.

PENNSYLVANIA CLEAN WATER AND BROWNFIELDS INVESTMENT OF STIMULUS FUNDS

Posted on February 27, 2009 by Joseph Manko

Among the priorities under the $787.5 billion American Recovery and Reinvestment Act of 2009 is repairing, rebuilding, and constructing the nation’s water infrastructure. Approximately $6 billion will augment the EPA’s clean water and drinking water state revolving funds, of which approximately $221 million will be disbursed to the Commonwealth of Pennsylvania’s Infrastructure Investment Authority (PennVest). The governing board of PennVest is appointed by Governor Rendell, and I have been serving as its chair for the past six years.

 

PennVest administers the approximately $300 million annual allotment of Clean Water and Drinking Water funds previously supplied by EPA on a matching basis with Pennsylvania. These funds will now be augmented by the $212 million in stimulus funds. The Clean Water Fund addresses waste water infrastructure. The fund also addresses brownfields (with its protection of water quality) and storm water, whereas the Drinking Water Fund is strictly for water supply and distribution. At least 50 percent of the funding must be in the form of grants.

 

With the current emphasis on sustainability, alternative energy, greenhouse gas emission reduction and the need for more stringent control over stormwater run-off, the allocation of stimulus funds by PennVest will focus on innovative green technology, including particularly, controlling stormwater and remediating brownfields (at least 20 percent of the stimulus funding must be used for “green infrastructure”.)

 

Although the final disbursement of the economic stimulus funding will be affected by various regulations, the awarding of grants and loans will likely be on the same timetable as in the past with an emphasis on “shovel ready” projects. Funding agreements must be entered into and contracts for the full amount signed within a year.  The ultimate goal is to immediately increase the amount of jobs needed to construct the infrastructural repair, rebuilding and construction. 

PENNSYLVANIA CLEAN WATER AND BROWNFIELDS INVESTMENT OF STIMULUS FUNDS

Posted on February 27, 2009 by Joseph Manko

Among the priorities under the $787.5 billion American Recovery and Reinvestment Act of 2009 is repairing, rebuilding, and constructing the nation’s water infrastructure. Approximately $6 billion will augment the EPA’s clean water and drinking water state revolving funds, of which approximately $221 million will be disbursed to the Commonwealth of Pennsylvania’s Infrastructure Investment Authority (PennVest). The governing board of PennVest is appointed by Governor Rendell, and I have been serving as its chair for the past six years.

 

PennVest administers the approximately $300 million annual allotment of Clean Water and Drinking Water funds previously supplied by EPA on a matching basis with Pennsylvania. These funds will now be augmented by the $212 million in stimulus funds. The Clean Water Fund addresses waste water infrastructure. The fund also addresses brownfields (with its protection of water quality) and storm water, whereas the Drinking Water Fund is strictly for water supply and distribution. At least 50 percent of the funding must be in the form of grants.

 

With the current emphasis on sustainability, alternative energy, greenhouse gas emission reduction and the need for more stringent control over stormwater run-off, the allocation of stimulus funds by PennVest will focus on innovative green technology, including particularly, controlling stormwater and remediating brownfields (at least 20 percent of the stimulus funding must be used for “green infrastructure”.)

 

Although the final disbursement of the economic stimulus funding will be affected by various regulations, the awarding of grants and loans will likely be on the same timetable as in the past with an emphasis on “shovel ready” projects. Funding agreements must be entered into and contracts for the full amount signed within a year.  The ultimate goal is to immediately increase the amount of jobs needed to construct the infrastructural repair, rebuilding and construction.