EPA Relies on Municipal Stormwater Permits to Restrict Runoff at Developed Sites
AGC Explains Legal Limits to Mandates on Stormwater Retention, Flow or Impervious Surface Area
As previously reported, the U.S. Environmental Protection Agency (EPA) has stopped work to promulgate a new national rule to restrict the discharge of stormwater from developed sites (after construction is complete). That’s the good news. The troubling news is that EPA continues to carry out the objectives of its deferred rulemaking via its existing permit process for municipal separate storm sewer systems (MS4s), which is legally questionable. AGC members should be on the lookout for new requirements that limit stormwater flow or impervious surface area at developed sites, as well as unmanageble mandates to retain runoff onsite to mimic pre-development conditions. AGC has a “toolbox” of resources available to help you respond.
EPA’s “post-construction” rule for stormwater runoff was expected to significantly expand the federal program and set nationwide performance standards to retain/infiltrate stormwater discharges (onsite) at newly developed and redeveloped sites. At one point, EPA even considered requiring owners to alter/retrofit their current properties. But after the agency missed all of its deadlines to propose the rule, talks between EPA and the Chesapeake Bay Foundation – plaintiffs in the 2010 legal settlement that required the regulation – collapsed, leaving the agency with no formal target to publish a proposal. Recently, the agency confirmed that it has “reallocated” resources away from the rulemaking.
AGC has met many times with EPA Water Office leaders since 2009, and the association’s advocacy work played a large part in helping to guide EPA to the correct conclusion that bringing all developed sites (nationwide) under the federal stormwater program does not make economic or regulatory sense and threatens to infringe on local land-use decisions. In lieu of a national rulemaking, EPA said it will provide incentives, technical assistance and other tools to communities to encourage them to implement strong stormwater programs. This includes leveraging existing requirements to strengthen municipal stormwater permits as well as the continued promotion of green infrastructure as an integral part of stormwater management.
Key Post-Construction Mandates and Issues Appearing in EPA Permits
Even though EPA has abandoned its national rulemaking effort, the agency is still trying to control stormwater flow from newly developed and redeveloped sites via strict mandates in MS4 permits that apply in areas where EPA remains the National Pollutant Discharge Elimination System (NPDES) permitting authority [including Washington, D.C.; Albuquerque, N.M.; several small towns in New Hampshire; and certain military bases]. Notable provisions include—
- New or redevelopment projects creating or replacing ≥ 5000 ft2 of “hard surfaces” must capture/retain all stormwater volume from the 95th percentile storm.
- New or redevelopment projects creating ≥ 10,000 ft2 of impervious surfaces cannot create stormwater flows that exceed pre-development flow conditions (i.e., forest land cover condition) for events up to the 50-year storm.
- Municipalities must establish standards for site designs within their jurisdiction that “minimize the project’s roadway surfaces and parking areas, incorporate clustered development, and ensure that vegetated areas are designed to receive stormwater dispersion from all developed project areas.”
AGC maintains that EPA lacks authority to mandate such results and is concerned by the precedent that is being set for future permitting in authorized states. Approximately half of all Phase II MS4 permits and a quarter of Phase I MS4 permits are currently expired, according to EPA. In most states, EPA has authorized the state environmental agency to manage and administer the NPDES permit program.
Cleaning up MS4 discharges is a main focus of EPA’s 2014-16 National Enforcement Initiative, which calls for flow reduction measures in permitting and enforcement actions to reduce stormwater pollution. To further advance post-construction performance standards in MS4 permits that are being reissued in “authorized” states, EPA released a compendium that highlights municipal stormwater permit language that sets retention-based, post-construction standards. EPA notes that the compendium does not impose any new legally-binding requirements/rights on EPA, states, the regulated community or the public. But clearly it will guide state and local decision-making in the near term. Again, AGC strongly asserts that EPA lacks authority to independently mandate such results.
Through re-issued EPA/state and local permitting procedures and regulations, contractors are being called upon to build-in stormwater controls to retain a certain volume of runoff onsite post-development, by using green infrastructure techniques to control flow and limit impervious surface area. AGC members have expressed concerns that some performance-based standards are excessively costly and/or impossible to meet (e.g., due to soil types that do not infiltrate easily and restricted space in urbanized areas) and open up liability issues concerning the contractor’s legal/contractual obligations with regard to the site and the owner after he leaves the site. There continues to be unanswered questions regarding who will be held responsible for maintaining stormwater infrastructure and who will be liable if it fails to work as designed.
Construction stakeholders should carefully monitor the reissuance of MS4 permits in the areas where they do work, as there will be opportunities for public participation and comment. AGC has compiled the following tools to help you respond.
Toolbox to Help You Respond
As explained above, EPA continues to pursue the same types of mandates that it considered for the national rulemaking but on a more permit-by-permit approach by asserting pressure on MS4s subject to its authority. Such efforts raise many legal and technical questions regarding EPA’s authority and wisdom in pursuing its agenda.
- AGC Crafts White Paper — AGC of America joined with a coalition of real estate associations to hire Barnes & Thornburg LLP to draft a “white paper” that provides a comprehensive overview of EPA’s NPDES stormwater permit program and the legal impediments to EPA’s strategy either to regulate the amount of impervious surface at a developed site or the stormwater “flow, velocity, or volume” leaving such a site, apart from pollutant discharges. The paper also explains that EPA cannot force state/local authorities to do something it lacks authority to do on its own; however, state and local authorities may act independently, and some have. (NOTE: This is not a quick read, but rather a comprehensive legal resource that AGC chapters and members may share with their outside environmental and legal experts.) Click here for industry-specific talking points and here for the latest draft of the supporting legal analysis.
- AGC Joins Amicus Brief – AGC’s coalition also retained Barnes & Thornburg LLP to file an amicus brief in a Department of Defense challenge before EPA’s Environmental Appeals Board regarding overly strict post-construction stormwater discharge limitations included in new stormwater (MS4) permits for American military bases in Washington State and Colorado. The brief – click here – argues that several of the permit conditions exceed EPA’s Clean Water Act authority “because they are not directly related to the discharge of pollutants from an MS4 but rather focus on unregulated characteristics of stormwater – such as its quantity, flow or velocity – or the amount of impervious surface are for new or redeveloped properties that may drain into the MS4.” Key to the arguments is the 2013 ruling by the U.S. District Court for the Northern District of Virginia in Virginia Department of Transportation (VDOT) v. EPA, where the court held that the agency could not regulate stormwater “flow” into the Accotink Creek through a total maximum daily load (TMDL) pollution cleanup plan.
EPA and the Department of Defense have agreed on a plan to settle this closely watched litigation. The downside is that they will avert a ruling that could have set a new precedent on whether the agency can set strict stormwater retention mandates in permits for municipal storm sewers. The parties need more time to implement their agreement, according to a June 2014 order extending the stay on the legal proceeding until Oct. 30.
- Permitting Approaches in Transportation Agencies – State departments of transportation (DOTs) are dealing with the challenges of being a unique municipal stormwater conveyance and discharger – DOTs hold both Phase I (large MS4) and Phase II (small MS4) stormwater NPDES permits. Recently, the Center for Environmental Excellence by the American Association of State Highway and Transportation Officials (AASHTO), in conjunction with the Federal Highway Administration (FHWA) and others, brought transportation agency experts together to share best practices, issues, and opportunities to improve how DOTs manage stormwater on highway infrastructure related work. All of the presentations from the meeting are online – click here. EPA also has a website focused primarily on road-related MS4s – click here.
Legal Petitions to Expand Stormwater Program
Officials in three EPA regions recently declined to grant legal petitions brought by environmental groups, asking the agency to use its rarely exercised residual designation authority to require property owners to add stormwater retention capacity through retrofits at thousands of commercial and industrial developments. This development, coupled with deferral of EPA’s national stormwater rulemaking, appears to be driving EPA to focus on site-specific enforcement agreements and MS4 permits to curb runoff from developed sites.
For more information, please contact AGC’s Leah Pilconis at email@example.com.
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