EPA Really Doesn't Seem Eager To Issue A Post-Construction Stormwater Rule

On Friday, E&E News reported that EPA had – for the fifth time – missed its deadline for proposing regulations governing stormwater discharge from post-construction activities. Apparently, EPA and the Chesapeake Bay Foundation, which was the plaintiff in the original litigation, are negotiating a new deadline. Good luck with that.

EPA is not in a good place at the moment. There is significant congressional opposition to any rule, with comments questioning not just the wisdom of a rule, but EPA’s authority to issue a post-construction rule at this point. Addressing stormwater will undoubtedly be extremely expensive. The same E&E story noted that EPA just approved a new stormwater plan for Philadelphia with an expected price tag of $2.4 billion. Even though the Philadelphia plan is a separate issue from regulation of post-construction discharges, it does give some idea of the economic magnitude of the issue.

By the way, did I mention that there will be an election in the fall? I know from experience in Massachusetts that even Democratic members of Congress are very sympathetic to claims from municipalities that they simply cannot afford to comply with EPA stormwater requirements. There may be less sympathy, at least on the Democratic side, with private landowners, but EPA has to be aware that it does not have a broad popular mandate for this rule. 

EPA cannot make this about big, bad, coal companies. This is about municipalities and private landowners. The regulated community with respect to stormwater is very large. Sometimes a large number of opponents is too diffuse to act and faces free rider problems. That does not seem to be the case here, as the costs are sufficiently high that they still matter to individuals, and there are large, well-funded, trade groups to minimize the free rider problem.

There may be a rule at some point. After all, there still is litigation, and a court will likely order EPA to issue a rule if EPA continues to delay. I wouldn’t be surprised, however, if it does not happen until after the election.

On the substance of the rule, it is worth noting that the Institute for Policy Integrity sent EPA a letter last week arguing that EPA should be doing more to look at market approaches to regulating post-construction stormwater discharges. I don’t mean to put too much weight on this. The Institute for Policy Integrity proposals are not going to get widespread developer support any time soon. Nonetheless, any time an environmental NGO supports an expansion in the use of market-based regulation, it is worthy of note.


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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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