National Stormwater Pollution Controls: What's at Stake?
As rainwater flows over streets, parking lots, and rooftops, it picks up toxic metals, oil, grease, pesticides, herbicides, bacteria, and nutrients. This polluted stormwater makes its way through gutters and storm drains to the nearest stream, damaging water quality and aquatic life. Stormwater runoff is responsible for nearly 11 percent of “impaired” rivers and streams across the country. [i] The term impaired means that the body of water is not fit for its “designated uses,” such as drinking, swimming, and boating. Stormwater is the single largest water quality problem in the Great Lakes and the only source of pollution to the Chesapeake Bay that is still growing.
The Clean Water Act requires certain stormwater dischargers to obtain permits from the EPA under the National Pollutant Discharge Elimination System (NPDES).[ii] The entities that are required to manage stormwater runoff are: cities that have separate stormwater sewer systems through which stormwater flows directly into a water body (called municipal separate storm sewer systems or MS4s); industries that collect and convey stormwater in the process of carrying out their activities; and operators of construction activities that disturb more than one acre of land.
To comply with the terms of their permits, permittees must develop stormwater management plans and implement best management practices (BMPs) to reduce stormwater runoff to the “maximum extent practicable.”[iii] These BMPs range from structural designs that divert water to a central pipe that then discharges the pollution into the nearest stream (“grey” infrastructure), to incorporating “green” infrastructure, which uses marshes, trees, and rain gardens to soak up water and filter pollution where the rain falls.
Such pollution controls and management approaches are woefully inadequate to deal with the stormwater problem. First and foremost, the coverage of the rule is too narrow: The current program only covers “cities” as defined by the U.S. Census Bureau, completely ignoring fast-developing suburbs and rural areas outside the city. Even when the program covers a pollution source, the coverage is not stringent enough. In 2009, a panel of experts at the National Research Council (NRC) found that the “EPA’s program has monitoring requirements that are so benign as to be of little use for the purposes of program compliance,” and recommended a nearly complete overhaul of the stormwater program.[iv]
A new stormwater rule is vital to address such holes in coverage and fix the program’s design flaws. The rule is also the most important thing President Obama can do to boost green infrastructure, which has been described as a key Administration priority.[v] In addition to better managing stormwater pollution, integrating green design into development and redevelopment standards can ameliorate flooding while making cities more attractive and increasing property values.
What’s the Holdup?
In addition to addressing the NRC’s sobering report, the EPA also agreed to revisit its approach to stormwater in the wake of a lawsuit. In 2009, the Chesapeake Bay Foundation (CBF) sued the EPA for its failure to enforce an interstate agreement to restore the Chesapeake Bay.[vi] The parties settled out of court, with the EPA agreeing, among other things, to revise existing stormwater rules “to expand the universe of regulated stormwater discharges and to control, at a minimum, stormwater discharges from newly developed and redeveloped sites.”[vii]
Under the settlement, the EPA was expected to issue a proposed rule in September 2011 and to promulgate a final rule by November 2012. The agency missed both deadlines. Since signing the settlement agreement, CBF has agreed to give the EPA no fewer than six deadline extensions. Not until the EPA blew another deadline in June 2013 did CBF officially declare the EPA in breach of the agreement. CBF must decide to go back to court to enforce the settlement.
Meanwhile, developers and some cash-strapped MS4s began to push back, fueled by a misleading report by Senate Republicans that inaccurately and selectively portrayed the economic costs of EPA water-protection regulations while ignoring the value of clean and safe water.[viii] Rather than sticking to its guns and publishing a proposed rule, the EPA announced that it was deferring action on the rulemaking and instead would provide incentives, technical assistance, and other approaches for cities to address stormwater runoff themselves.
What the Rule Should Do?
As laid out in the settlement with CBF, the rule must expand the universe of regulated stormwater discharges, requiring new controls on discharges from newly developed and redeveloped sites. To fully address existing stormwater runoff and remove negative incentives to redevelopment, the rule should go farther:
Establish clear requirements for controlling post-construction runoff in MS4 areas. A new rule should adopt objective performance standards that will be incorporated into permits—requiring all buildings to retain a certain amount of stormwater on site, for example. Doing so will ensure that polluters can be held accountable for failing to protect local waterways. These new requirements should apply to newly developed and redeveloped sites, as well as to old developments. Requiring public and private owners to retrofit already developed land is the only way to fully address the impacts of existing stormwater pollution.
Extend those requirements beyond the current geographic boundaries of MS4 areas and permitted industrial locations. Stormwater runoff starts to damage water quality well before areas achieve the population densities that now trigger Clean Water Act coverage. Proactively planning for stormwater protection as these exurbs grow is generally much cheaper than waiting for urbanization to occur and then attempting to retrofit the landscape to resolve the resulting water quality problems. Expanding the geographic scope of coverage is also necessary to level the playing field and persuade developers to build on previously developed lots rather than on green spaces. While stormwater controls on already-developed land are not as costly as once believed given the value of urban development, regulations should be designed to encourage—not deter—developers from redeveloping a lot.
Promulgating a meaningful stormwater rule will be politically and technically challenging, and retrofitting urban landscapes to address stormwater costs can be expensive. But the nation’s continued failure to effectively manage stormwater pollution will continue to offset the gains that other sectors are making to reduce pollution, making clean streams, rivers, and lakes an impossibility.
The Obama Administration should work quickly to direct the EPA to introduce an effective rule that addresses the growing impacts of stormwater pollution. Though President Obama has a little over two years left in his presidency, large and complex rulemakings such as this can take much longer to complete. Before abandoning the rule, the EPA had already begun to visit sites, collect information from stakeholders, conduct cost-benefit analyses, and develop necessary models and databases. President Obama’s EPA should pick up where it left off and get to work immediately on a stormwater rule proposal to have any chance of addressing the fastest growing source of water pollution in the country. Once it has issued the proposal, the agency should then solicit public comment and quickly incorporate any input it receives into a final rulemaking. To have any chance of completing this rulemaking before the end of the Obama Administration, the EPA should commit to issuing a proposal by April 2015 and a final rule no later than June 2016.
[i] Of the 555,569 miles of impaired rivers and streams surveyed by the EPA, stormwater was responsible for polluting 59,974 miles. See U.S. Envtl. Protection Agency, Watershed Assessment, Tracking & Environmental ResultS: National Probable Sources Contributing to Impairments, http://ofmpub.epa.gov/waters10/attains_nation_cy.control#prob_source (last visited Nov. 4, 2014).
[iii]See National Pollutant Discharge Elimination System—Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 Fed. Reg. 68722, (Dec. 8, 1999) (to be codified at 40 C.F.R. §122.26).