Post-Construction Stormwater Controls

by LeClairRyan

construction-stormwaterMy last post focused on EPA’s effective denials of three petitions asking the Agency to require broad groups of industrial, commercial and institutional facilities to obtain stormwater permits. Those petitions argued that the impact of this “uncontrolled” urban and suburban runoff on water quality necessitated broad and decisive action through the exercise of EPA’s residual permitting authority.

Although EPA declined to take the action sought by the petitions, the question remains what, if anything, is the Agency doing about the types of discharges that so worried the petitioners?  These petitions weren’t focused on stormwater discharges associated with construction activities.  EPA has long regulated those.  EPA’s original stormwater rules covered construction sites greater than five acres, and (because a court told EPA to) it was later expanded to cover even smaller sites.  The petitions were concerned about what happens when construction ends.  Stormwater discharges from developed sites are not now covered by the permitting program (unless they are industrial facilities).

If, as some claim, development and urbanization leads to degraded water quality, what can be done about it?  In 2009, several environmental groups sued EPA seeking to have the Agency issue rules requiring post-construction stormwater controls.  EPA settled the case and initiated a rulemaking and information-gathering process.  After years of dithering, however, EPA last month announced that it intended to defer issuing a national rule.  Instead, the Agency said it would provide guidance, incentives and other assistance to localities operating municipal separate storm systems.  This decision to forgo a categorical approach in favor of local solutions is consistent with the Regional decisions to reject the three petitions seeking the broad exercise of the Agency’s residual permitting authority.

EPA’s inclination to avoid a single approach to address post-construction discharges is probably appropriate.  While national standards and uniformity are sometimes the right step to take (for example, national ambient air quality standards), there are other times when individual solutions designed specifically for local conditions work better.  What might constitute a best stormwater management practice for a rainy Seattle may not be appropriate for the deserts of Nevada.  EPA’s best move here, and the one it apparently is taking, is to provide a menu of control options, incentives, goals and funding to let states and municipalities decide how to address the issue.  A mini-laboratory of democracy, if you will.

While developers may be breathing a sigh of relief that EPA is not intending to pursue a post-construction rule, they are not completely off the hook.  There are other tools that EPA, states and cities can and do employ.  Permits for municipal separate sewer systems typically include measures to control runoff from newly developed or re-developed areas.  TMDLs, like the Chesapeake TMDL, can set the stage for similar controls.  There are many ways to skin this cat, and it appears that EPA is going to give some time to see how these alternative approaches work.


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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