Regulating Stormwater – The Never Ending Saga

by LeClairRyan
Contact

Stormwater DischargeAs you could probably tell from the number of posts I’ve written on the subject, stormwater fascinates me. Not that I particularly like rain or snow (particularly after this winter!). But, as an environmental concern and legal and policy issue, there are few subjects that can match both its simplicity – we all know what stormwater is – and its complexity – figuring out how to effectively control it has proven to be one of the more intransigent problems confronting EPA and the states.  In fact, one of the very first cases I worked on over 25 years ago involved stormwater, and, despite some progress, the legal and policy debates over stormwater continue today.  Given my interest in the topic, my next few posts are going to focus on stormwater.

What is it about stormwater?  To begin, it’s well-established that stormwater discharges – both point and non-point – are significant contributors to surface water quality impairment.  Major water bodies, such as the Chesapeake Bay and the Mississippi River, are not achieving water quality standards to a significant extent because of the contribution of stormwater containing nutrients and other pollutants.  That stormwater presents an environmental problem that still needs to be addressed is difficult to dispute.

Easy enough, but figuring how to deal with stormwater remains a thorny issue.  Part of the difficulty arises from the Clean Water Act itself - the way in which it divides responsibilities between the federal and state governments; how it defines which stormwater discharges are to be controlled and which are exempt; and how the non-stormwater provisions of the Act interact with the Act’s stormwater mandates.  These tensions are what I intend to explore over several posts.  I’ll start in this post by describing the general framework of the Clean Water Act’s regulation of stormwater.

The Clean Water Act divides sources of pollution into two general categories: (1) point and (2) non-point.  Point sources are discernible, confined and discrete conveyances, such as pipes, ditches, tunnels, and conduits of any type.  Non-point sources are everything else – think sheet flow that enters a water body but not through a pipe, ditch or culvert.  And, as I previously explained, the Act exempts some discharges which would otherwise appear to qualify as “point source” discharges, such as irrigation flow returns and stormwater from certain agricultural or silvicultural activities.  In essence, such discharges are considered “non-point” discharges.   Stormwater, of course, enters water through both point and non-point sources.

The Act then divides responsibility for point and non-point sources between U.S. EPA and the states.  EPA is authorized to issue general rules for point source discharges, including stormwater discharges from point sources, and establish a nationwide permit program for such discharges.  States can submit a request to EPA to assume responsibility for that point source discharge permit program assuming their program meets the minimum qualifications established by EPA.  In general terms, however, point source discharges are a federal responsibility which can be shared with the states who typically take over their permitting.

water pollution pointsThat’s not the case for non-point sources.  EPA is prohibited from establishing requirements for non-point sources; only states may take direct action to address these sources.  The rationale is that the most effective way to regulate sheet flow/non-point sources - such as runoff from urban and suburban development – is to regulate land use.  Land use regulation has historically been, and continues to be, an issue of state and local concern.  Congress did not want EPA,  through the Clean Water Act, to become involved in or be responsible for such local land use decisions.

While there are sound reasons for the Act’s division of responsibility between the federal and state governments, there’s no question that it restrains EPA’s authority over stormwater.   Because EPA cannot regulate non-point sources/sheet flow, it can’t directly address a significant portion of the problem.   This doesn’t mean non-point sources go unregulated, only that it is more difficult to control them.  Total Maximum Daily Loads (TMDLs) are the most obvious approach.  If a water body is impaired (i.e., does not meet water quality standards), a state must establish a TMDL, in which the state specifies the maximum allowable loads from both point and non-point sources to ensure attainment of water quality standards.

The Clean Water Act contains special provisions for permitting of point source stormwater discharges.  The Act requires stormwater  permits for (1) industrial activities, (2) medium and large municipal separate sewer systems, and, of particular interest of late (3) sources which EPA or a state determines contribute to violations of water quality standards or which are significant contributors of pollutants (the so-called “residual authority”).

In my next few posts, I intend to review some of the more interesting current stormwater issues, including attempts by NGOs to have EPA exercise its residual authority to control stormwater, EPA’s revised effluent guidelines for the construction industry, and others. Stay tuned.

 

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!