Post-Construction Stormwater Controls

by LeClairRyan
Contact

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.

© LeClairRyan | Attorney Advertising

Written by:

LeClairRyan
Contact
more
less

LeClairRyan on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!