Conservation Groups Petition EPA To Require Stormwater Permits At Existing New England Sites

The Conservation Law Foundation (CLF) and other environmental groups recently filed petitions urging EPA New England, along with other EPA offices in the Mid-Atlantic and Southwest, to use EPA’s Residual Designation Authority (RDA) under the Clean Water Act (CWA) to impose new stormwater management requirements for existing sources that are contributing to violations of state water quality standards. If granted, this would apply to stormwater discharges from commercial, industrial, and institutional sites that may have been developed years ago without National Pollutant Discharge Elimination System permits and that discharge to hundreds of impaired waters throughout New England.

Based in Section 1342(p)(2)(E) of the CWA, the RDA provisions allow EPA to require a permit for any previously unpermitted stormwater discharge that EPA or a state administrator determines “contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States.”  For most of the history of the CWA, this provision has been largely overlooked.  However, recently conservation groups have increasingly advocated for more use of the RDA provision.

In New England, EPA has already used this authority in three instances to expand the scope of the CWA to include stormwater discharges that previously were not subject to CWA permitting requirements, such as at Long Creek near the Maine Mall in southern Maine where EPA focused on properties with at least one acre of impervious area. The current petitions advanced by CLF and others would, if granted, expand EPA’s use of the RDA provision to a region-wide level. In fact, the groups behind the petitions have indicated that they ultimately would like to see the RDA provision utilized to expand the scope of the CWA nationwide.

It is difficult to predict what action EPA will take with regard to the pending petitions, or who might be included within its scope. It is clear, however, that the point of the petition is to pull existing commercial, industrial, and institutional properties into the permitting program even if no permits were required when they were developed.  While EPA has moved forward on such requests in the past, it has deferred other RDA initiatives due to cost concerns. EPA now has 90 days to act on the petition.

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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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