Continuing on the stormwater theme I began in my last post, the next topic I intend to cover is EPA’s so-called “residual” authority under the Clean Water Act. The statute specifically requires stormwater permits for industrial and medium and large municipal sources. It also provides EPA authority to expand these categories to require permits for other stormwater discharges which contribute to violations of a water quality standard. In essence, if there are point source stormwater discharges out there that need to be addressed, EPA has the ability to take them on.
The potential power in this residual designation authority has not been lost on environmental advocates. In July 2013, several groups – including American Rivers, Conservation Law Foundation, and Natural Resources Defense Council – filed petitions with EPA Regions 1 (link), 3, and 9 asking the Regions to require stormwater permits for “non-de miminis” “commercial, industrial and institutional” sites which currently do not have permits. The petitions argued and presented information to show that stormwater runoff from these sources are: 1) not adequately controlled, 2) contain zinc, copper, nitrogen, phosphorous and other pollutants, and 3) contribute to violations of water quality in surface waters throughout the regions. The petitions were focused on hospitals, malls, commercial developments, industrial rooftops and similar types of urban and suburban sites. While stormwater runoff from these sources are typically captured and discharged through permitted municipal separate storm systems managed by cities and municipalities, the petitions sought to have the commercial, industrial and institutional sources themselves be held directly accountable for their pollutant contributions in order to “more equitably” distribute the cost of managing their discharges (i.e., shift the financial burden of controlling stormwater from cash-strapped cities and municipalities to the sources themselves).
The three EPA Regions responded (Region 1 here and Region 9 here) in similar and coordinated fashion in early March. The Regions declined to grant the requests. Instead, they each concluded that the information presented in the petitions did not “establish a correlation” between the sources and the impaired waters. The Regions found the petitions presented insufficient data on which to make a categorical determination that stormwater from these sites needed to be controlled through individual permits since most were already covered by permits for municipal separate sewer systems.
That’s not the end of the story, however, at least in Regions 1 and 9. These two regions declined to undertake a wholesale, Region-wide designation of these sources, instead stating that they would undertake more waterbody-specific evaluations to determine where and whether they might need to and should exercise their residual designation authority. EPA Region 3, in contrast, declined to commit to any specific additional actions in response to the petitions, pointing to many of the actions that it and the states within the Region are already taking, including the Chesapeake Bay TMDL.
I don’t expect that this will be the last we hear about the residual designation authority. I suspect that environmental groups will file similar petitions in other Regions, and you can bet that they will carefully study the responses from Regions 1, 3 and 9 to refine and strengthen these new petitions. Moreover, it is very likely that Regions 1's and 9's loose commitment to do more will lead to some action on their part (Region 1 specifically mentioned the Charles River), although budgetary constraints may push any such action into the distant future. Regardless, this is definitely an area to watch. While your facility may not now be permitted, at some point it may be caught in the web of EPA’s residual designation authority.