2 and 1/2 Strikes and the NGOs May Be Out: EPA Refuses to Exercise Residual Designation Authority


Stormwater regulation is a thorny issue.  There is widespread agreement that nutrient run-off can be a significant problem, but little agreement on what to do about it, since stormwater infrastructure is normally managed by cash-strapped municipalities, but the most cost-effective approach will often not be to require thousands of individual properties owners to make large separate capital expenditures (though best management practices can certainly often provide significant benefit).

The NRDC, American Rivers, and CLF sought last year to cut this Gordian knot by petitioning EPA (at least in Regions 1, 3, and 9) to exercise its “residual designation authority” under the Clean Water Act and require permits for stormwater discharges from commercial, industrial, and institution (CII) sites.  Regions 3 and 9 have now denied the petition.  Region 1 neither granted nor denied the petition.  Instead, Region 1:

Intends to evaluate individual watersheds, focusing on the nature of the impairment and the extent to which stormwater discharges from CII sites are contributing to such impairment, to determine whether and the extent to which exercise of RDA is appropriate.

Cynical readers might conclude that Region 1 pulled a fast one to avoid having their response labeled final agency action subject to judicial review.  In any case, CLF certainly seems to take Region 1’s response as a denial, and I think that they are correct.  EPA’s response to CLF states that the CLF data:

does not provide the Region with specific information about specific sources within the Region. …  In the Region’s view, the Petitioners’ approach is too simplistic.


The evidence in the petition does not provide information that directly connects a CII site or category to a specific impairment.

EPA’s ultimate conclusion?  It “will consider the use of RDA to address impaired waters in a targeted manner where there is adequate evidence … of storm water discharges … causing or contributing to water quality impairments.”  I don’t expect to see EPA running out to use its RDA anytime soon, though the agency has surprised me in the past and could do so again.

Bonus point for local readers – EPA specifically addressed its long-pending RDA for three communities in the Charles River Basin.  Here’s where we are today:

Since that designation has not been finalized, the Region plans to revisit its proposal and consider whether it would be appropriate to expand the designation to include sources in additional towns or throughout the entire watershed.  EPA will conduct this effort in the context of the petition previously filed by CLF specifically related to the Charles River watershed.

In short, it now seems that all municipalities in the Charles River watershed have reason to be concerned, but it sure does not appear that any final action by Region 1 is imminent.  And since this about pollution in the Charles, and I am a Red Sox fan, I have to close with this.  Sorry, Yankees fans.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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