Over the last couple of months, a pair of actions taken by the U.S. Environmental Protection Agency (EPA) demonstrate the glacial pace of federal stormwater management policy under the Clean Water Act. In October, EPA rejected a series of petitions by a group of environmental organizations to expand regulatory protections for certain urban waterways. Then last month, EPA issued a new national rule clarifying existing urban water quality regulations, but only because it was forced to respond to a federal court decision now more than a dozen years old.
Let's start with the good news, however minor it may be. The new stormwater rule that EPA released in November is primarily procedural in nature. The issue at hand is when the public should be able to provide input to EPA and the states regarding the issuance of permits to their towns and cities that regulate polluted urban runoff. And while public participation is generally important to the Clean Water Act, public input is of particular importance to the proper functioning of stormwater regulation.
The new EPA stormwater rule was required as a response to an old federal appellate court decision that held that EPA and the states, as the permitting authorities, were failing to do their job as Clean Water Act regulators. The court's main concern was that the process by which EPA and the states issue stormwater permits to municipalities was not only cutting out effective public input but also meaningful state or federal review of the permits, which essentially enabled the local governments to engage in unlawful self-regulation.
In the court's words, the existing rule did not require EPA or states "to ensure that the measures that [a local government] has decided to undertake will in fact reduce discharges to the maximum extent practicable." In other words, the rule was procedurally defective and the process needed to be corrected by including public participation and meaningful review by regulators.
But surely fixing a major problem that the courts identified more than a dozen years ago doesn't constitute making environmental progress, does it? Not really, but the new EPA rule also went slightly beyond this procedural fix to address more substantive concerns about the lack of regulation of polluted runoff in small communities across the country.
Over the course of the Obama administration, EPA has slowly but surely clarified its position in support of more progressive stormwater regulation through a number of guidance documents, manuals, and memos. The new rule lifts some of the language from these documents and codifies them through the rulemaking process.
Such changes are designed to ensure that stormwater permit terms and conditions are "clear, specific, and measurable" to enable better enforcement of the permits and strengthen the connection between the permit's limits and actual water quality changes. The new regulations also stripped out weak and vague "caveat" language, such as "if feasible," which, to the court's point, made the regulations toothless and vulnerable to the limitless discretion of the regulated municipalities themselves.
EPA also emphasized that states must ensure that each new permit term is actually more stringent than the previous one, so as to make forward progress against hazardous water pollution over time. Finally, EPA addressed a longstanding legal fight brewing behind the scenes over the interpretation of a pretty vague but critically important statutory term in the Clean Water Act ("maximum extent practicable"), which once again seemed to allow unfettered discretion to reluctant municipal officials unwilling to establish effective regulation over polluted urban runoff.
It is unfortunate that it has taken more than a dozen years to develop a fix to this problem and that the only stormwater rule the Obama EPA was able to establish was this mostly procedural rule, rather than the comprehensive stormwater rule that had been in the works for years. But incremental progress is at least better than a step backward, which is ultimately the direction EPA took when it denied a petition by environmental groups in October to extend regulatory protections for specific urban communities by expanding stormwater permit coverage over currently unregulated commercial, industrial, and institutional sources.
At issue is the so-called "residual designation authority" (or "RDA"), which allows EPA to issue stormwater permits to previously unregulated sources of pollution. The threshold for doing so is a finding that current regulations are inadequate to restore waters that are polluted by unregulated sources. National and local groups including the Natural Resources Defense Council (NRDC), American Rivers, and Blue Water Baltimore filed the petition with EPA over several polluted waters in need of this extra protection, including the Chesapeake Bay tributary Back River in Baltimore City and County. Back River was selected after extensive geographic information systems analysis and environmental data confirmed that unregulated sources were a disproportionate source of pollution.
After reviewing the legal standard for granting an RDA petition, EPA lawyers determined that the standard was not met and that the petition was premature. They argued that the existing municipal stormwater permits should be sufficient to reduce stormwater pollution in Back River and that limited government resources should be directed to making the municipal stormwater permit work.
But a lack of resources is precisely the problem. Neither Baltimore City, nor Baltimore County, nor any local jurisdiction in Maryland has been able to comply with their municipal stormwater permits due primarily to a lack of funding and resources. And that is exactly why accepting this petition would have been helpful. The petition would have required the private sector, including big-box retailers, large industrial companies, and big institutions to pitch in and address pollution from their properties.
EPA stated in its denial that it continues to view RDA as a "valuable tool" and "a supplemental course of action for achieving the desired Bay water quality goals." But when confronted with the clear need to finally exercise that authority, EPA simply failed to act. And this is troubling not only because the agency has decided to turn its back on a local waterway suffering from what EPA has long acknowledged is one of the most vexing and important water quality problems, and not only because the agency has established through precedent an impossible (or impossibly vague) legal standard for granting an RDA petition, but also because RDA is one of the few legal tools EPA has to make Clean Water Act restoration plans (known as "TMDLs") work.
The Chesapeake Bay TMDL, which is one of more than 70,000 such plans around the country, is not enforceable or self-executing. All TMDLs rely on permitting authorities to translate the pollution reduction goals into enforceable permits. If the source of pollution cannot be regulated by a permit, however, EPA has few options to achieve the reductions, one of the most important of which is the RDA authority. In the landmark Bay TMDL (the largest and most well-funded such effort), EPA publicly committed from the beginning to use whatever authority it had, expressly including the RDA, to keep the cleanup framework on track. Years later, however, not only is the Bay TMDL not on track, but stormwater pollution (unlike other sources) is actually still increasing. If ever there was a time to take action, it was now (certainly before the Obama EPA leaves office), and the RDA petition would have been the perfect vehicle for that action.
Finally, in denying the RDA petition, EPA has also passed over a critical and unique opportunity to promote climate resiliency in urbanized jurisdictions that are in great need of new regulations to manage increasing quantities of stormwater. Unregulated commercial, institutional, and industrial sources, like big-box stores and universities, targeted by an RDA petition are responsible for generating tremendous quantities of stormwater from expansive parking lots and buildings. In older municipalities like Baltimore, where such facilities pre-date state stormwater regulations for new development, much, if not all, of the stormwater volume is directed from private property to public streets, stormwater infrastructure, and, ultimately, local waterways. The effect is greater localized flooding while local governments are already overwhelmed with the task of merely maintaining their public storm sewer systems. While climate change continues to cause substantial increases in precipitation frequency and volume, municipalities will have nowhere else to turn but upstream to regulate increasing volumes of stormwater.
If this is the type of progress on polluted urban runoff that we have been able to make after two terms of the Obama administration, one has to wonder what's in store for the next four years. The silver lining, however, is that this has always been an issue where progress can be made primarily at the state and local levels. Without any help from the federal government going forward, it will be up to private citizens and local officials to make their voices heard. And in that regard, the recent stormwater rule is quite timely.