Becker's Iowa Environmental Law Update : Iowa Environmental Lawyer & Attorney : Charles Becker : Belin McCormick P.C. Law Firm : IA Regulatory Compliance, Site Cleanups

In an earlier post, I noted that EPA was in the process of setting its enforcement priorities for the years 2011 through 2013. At the time, the Agency had fifteen areas of possible consideration. EPA has finalized its list and out of the fifteen areas under consideration, they chose five and added a sixth area not previously considered.

The areas that have been chosen for the final cut are:

• Keeping Raw Sewage and Contaminated Storm Water Out of our Nations’ Water – This enforcement initiative will focus on reducing discharges from combined sewer overflows, sanitary overflows and municipal separate storm sewer system. EPA will be requiring various commitments from cities to implement solutions to the problems caused by aging urban infrastructure. For many municipalities, this means huge and expensive construction projects will need to be undertaken in the very near future;
• Preventing Animal Waste from Contaminating Service and Ground Waters – Concentrated animal feeding operations generate a large amount of manure which can end up being discharged into surface waters or seep into ground water. EPA intends to strengthen its enforcement focus on existing large and medium sized facilities that are not in compliance with permitting regulations;
• Cutting Toxic Air Pollution that Affects Communities’ Health – Hazardous air pollutants have been determined to present significant threats to human health. This enforcement initiative will focus on industrial and commercial facilities that are allowing excess emissions;
• Reducing Widespread Air Pollution from the Largest Sources, Especially the Coal-Fired Utility, Cement, Glass and Acid Sectors –Many industries have ignored the New Source Review and Prevention of Significant Deterioration requirements when building new facilities or making significant modifications to existing facilities. This national enforcement initiative will target these emissions, particularly at coal-fired utility, cement, glass and acid plants;
• Reducing Pollution from Mineral Processing Operations – Mountaintop mining has not gone unnoticed by EPA. Mining and mineral processing facilities pose high risk to human health and the environment with many of the sites already being on the Super Fund National Priorities List. This initiative will seek to bring these facilities into compliance;
• Assuring Energy at Extraction Sector Compliance with Environmental Laws – This is a new topic for EPA. The initiative indicates that EPA understands that a push for “clean energy” sources can result in a dirty environment. A particular area of scrutiny will be oil and gas extraction as well as coal mining.

Those that got knocked off of the list include environmental justice, Indian country drinking water, marine debris, RCRA enforcement, RCRA financial assurance, pesticides at day care facilities, industrial surface impoundments, wetlands and worker safety for agricultural pesticides.

Businesses should be aware of the final priority list because EPA has, in the past, followed it when deciding where to place its emphasis (and enforcement funds).  While I doubt that the mining, oil, gas, coal-fired utilities, CAFOs or industries producing hazardous air pollutants are going to be particularly shocked by the initiatives targeting them, some municipalities may be very unpleasantly surprised by their next visit from EPA.

RELATED POST:  EPA Has Its Priorities

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The Clean Water Act is complex and rule intensive.  As such, it is easy to forget the purpose of the Act -- clean water.   The Eighth Circuit recently had an opportunity to remind us of that purpose in the case of Service Oil, Inc. v. U.S. EPA.

For those who practice in the area of property development and storm water regulation, the facts were not surprising.  Service Oil began construction of a Stamart Travel Plaza on more than five acres of land in Fargo, North Dakota. As soon as earth was turned, the site became a potential “point source” under federal law. The storm water discharges from the site were deposited into Fargo’s storm sewer system which then went into the Red River of the North. As a result of this discharge, the site was required to obtain an NPDES permit. The North Dakota Department of Health was authorized to issue the NPDES permits and required that a Notice of Intent to obtain such a permit had to be submitted at least 30 days prior to the start of construction.

In October of 2002, EPA and the North Dakota Department of Health officials inspected the Stamart site and found that no Notice of Intent had been filed, which was quickly corrected by Stamart.  As luck would have it, there was apparently no rain fall that occurred at the site between the time that development commenced and the time Stamart was able to get its Notice of Intent on file. Though the state officials were satisfied, EPA continued its review and determined that Stamart had also failed to conduct site inspections as required by state law.

In bringing its action against Stamart, EPA sought an $80,000 administrative penalty based on two acts: (1) Stamart’s failure to file its Notice of Intent in a timely manner and 2) Stamart’s failure to conduct timely inspections. The majority of the penalty ultimately assessed by the Administrative Law Judge was for the failure to properly file the Notice of Intent. The ALJ found that Section 1318 of the Clean Water Act had record-keeping requirements supported by regulations that required the preconstruction submission of a completed permit application.

On appeal, the Court agreed that the Clean Water Act prohibits discharges without a permit.  It also agreed that it is logical that the regulations provide for permit applications to be submitted prior to any initial discharge. The Court focused on the fact that the regulations required that a person who proposes a new discharge must submit its application before the date on which the discharge is to commence. However, the statute’s requirements, by its terms, applies to a point source. In the words of the Court:

Failure to comply with [the requirement of submitting an application before discharge] cannot be a violation of section 1318(a) because that statute’s record-keeping requirements are expressly limited to “the owner or operator of any point source.” Before any discharge, there is no point source. (Emphasis added).

The Eighth Circuit was simply emphasizing that EPA does not regulate “point sources.” Rather, a point source is just a defined term which determines whether the regulatory scheme might apply to that source. If the source is not deemed to be a point source (such as agricultural runoff), then the regulatory scheme does not apply to it. If it is defined to be a point source (such as a construction site), then the regulations do apply, but only after there has been a discharge.  Since the statute gives jurisdiction only over actual water discharges, a developer cannot be penalized for failing to take out a permit, at least not until a discharge event, such as storm water runoff, has actually occurred.

To emphasis this point, the Court quoted an earlier Second Circuit case:
 

The Clean Water Act gives the EPA jurisdiction to regulate and control only actual discharges—not potential discharges, and certainly not point sources themselves. (Emphasis in original).

So does this mean the developer can avoid filing a Notice of Intent or obtaining a permit?  The Court, recognizing that EPA might be concerned that it lacks regulatory authority to assess administrative penalties for failing to submit a timely permit application, offered these words of consolation:

Prudent builders know that permits do not issue over night and that storm water discharges can happen any time after the start of construction makes the site a point source. They will apply and obtain permits before starting construction to avoid penalties for unlawful discharges that may prove to be severe. That is the regulatory regime Congress crafted.

In other words, developers take note -- counting on the Farmer's Almanac is probably not a sound business plan. 

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A key aspect of being effective is figuring out what needs your attention right now and what can wait until later. EPA seems to understand this.  Every three years, EPA creates a set of national enforcement priorities setting out the areas in which it will focus its inspections, compliance assistance and enforcement actions over the course of those three years. It provides for interesting reading.

For example, the priorities for the years 2008, 2009 and 2010 were:

• Air toxics

• New source review/prevention of significant deterioration

• Concentrated animal feeding operations

• Municipal combined sewer and sanitary sewer overflows

• Storm water
• 
Mineral processing
• 
Financial responsibility
• 
Indian country

The Agency is in the process of setting its priorities for 2011, 2012 and 2013. To identify the possible areas of consideration, EPA collected information from the various regions, states, tribes, associations and the public. Based on the information it received, EPA created the following list of candidates for the upcoming enforcement priorities:

• Air Toxics – EPA is proposing to continue to focus on leak detection and repair and the presence of hazardous air pollutants near schools;
• Concentrated Animal Feeding Operations (CAFOs) – this initiative would focus on the regulation of surface water runoff carrying animal waste into waterways. There is no discussion of air or odor issues;
• Environmental Justice – a review of burdens that pollution has disproportionately placed on vulnerable populations including children, communities of color, Native Americans and the poor;
• Indian Country Drinking Water – it has been determined that the level of noncompliance of public water systems in Indian country is significantly hirer than at comparable public water systems outside of Indian country. This initiative would attempt to identify the reasons why and find a method of correcting those deficiencies;
• Marine Debris – this would focus on debris that is improperly discharged into a water way. Enforcement of current regulations and cleanup activities would be key components of the initiative. It is viewed as a good fit to address along with municipal runoff issues;
• Mineral Processing – mineral processing and mining use strong chemicals and generate large volumes of waste for disposal. Over the past decade, significant damage has been done to the environment from these operations. This initiative would focus on inspections and sampling by EPA;
• Municipal Infrastructure – the storm water and sanitary sewer piping for many cities is outdated and frequently causes discharge events. This initiative would require significant modifications and repairs to many of the city systems;
• New Source Review/Prevention of Significant Deterioration – EPA has determined that many air pollutant sources have made operational changes that have resulted in increased air emissions, but failed to obtain proper permitting. The industrial sectors which will be reviewed are coal-fired electric utilities, cement manufacturing facilities, sulfuric and nitric acid manufacturing facilities, glass manufacturing facilities and lime manufacturing sites;
• RCRA Enforcement – increased emphasis on cleanups of contaminated facilities and creation of a nationally consistent approach to enforcement at all RCRA facilities;
• RCRA Financial Assurance – increased enforcement of determining that sufficient funds are set aside for response and closure of RCRA facilities;
• Resource Extraction – various forms of resource extraction, such as mountaintop mining and oil and gas development, have caused increased concerns about a rise in levels of air pollution and water quality degradation. This initiative would increase the focus on the regulation of these resource extraction activities under CAA, CWA and SDWA, with emphasis on federal lands and Indian Country;
• Pesticides at Day Care Facilities – a study done in 2001 of wipe samples from indoor services at day care centers identified at least one pesticide in every day care center studied. Some centers had up to ten different kinds of pesticides in use. This initiative would investigate the use and effect of pesticides at day care centers;
• Surface Impoundments – many industrial facilities use surface impoundments to treat or store non-hazardous liquid and solid waste which can contaminate surface water, groundwater and air. Additionally, hazardous waste storage in such impoundments without a RCRA permit is a violation of law. EPA estimates there are 18,000 surface impoundments operating and that inspection and oversight is a worthwhile initiative;
• Wetlands – recent studies show a pattern of wetland loss under the Clean Water Act which justifies an enforcement initiative;
• Worker Protection Standards for Agricultural Pesticides – studies show that farm worker families have a higher level of pesticide exposure than non-farm worker families. In light of the number of farm workers and pesticide applicators, an initiative of inspections for both product and use compliance is necessary.

Cynthia Giles, EPA’s Assistant Administrator for Enforcement and Compliance Assurance, spoke at the National Environmental Justice Advisory Council on January 29, 2010. At that time, Ms. Giles indicated that the fifteen new enforcement areas for consideration were likely too many and that, when finally published, there will likely be fewer than nine initiatives for the 2011 through 2013 period. She also indicated that air toxics emissions, large animal feeding operations and new source review violations will likely make the cut for the national enforcement priorities.

It is important for businesses and legal practitioners to carefully note the final list of initiatives. At least over the past three years, a great deal of the EPA’s enforcement activities have been conducted on the topics that they identified as initiatives and there is every reason to believe that this will continue in the future. To be forewarned . . . .

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A recent guest editorial in the Des Moines Register makes an interesting observation about water quality in agricultural states -- it stinks.

The authors state that Iowa has a double standard concerning sewage. That is, there are significant and costly regulations for point sources, such as municipal and industrial wastewater treatment facilities that discharge into rivers and streams, but virtually no regulation of non-point discharges, like the transporting and spreading of manure on farmland that then washes off into the waterways. According to the authors:

If state officials hope to stop the degradation of Iowa’s waters, it does not make sense to ignore the agricultural component, which accounts for at least 90 percent of our water pollution.

To be sure, it’s hard to argue against cleaner water. But is it fair to impose a new regulatory and financial burden on cities and urban industries, while continuing to allow industrial agriculture to spread untreated sewage into the land?

The authors conclude that the agricultural, non-point sources should be held to the same standard as point sources and suggest that agricultural discharges should be required to pass through a wastewater treatment facility, though the article fails to mention the staggering cost of that proposal.

It’s certainly an interesting point, and it is not unique to Iowa or the United States. The Clean Water Act has always given a free ride to non-point pollution sources. Though it may make no scientific sense to say that a 40-acre field that has agricultural runoff is somehow different from a 40-acre field that is being prepared for a subdivision, that has been the regulatory scheme for decades. And it has been true despite the fact that, as pointed out by the authors, the vast majority of water contamination can be attributed to non-point sources.

In the past, even the mention of imposing such costs on agriculture, a significant employer in many state economies, was political suicide -- and maybe it will continue to be. But as EPA and state environmental agencies begin to force more and more costly regulation on point sources (for example, storm water runoff from construction sites), those same sources are going to start pressing the question of why non-point sources, which are significantly larger polluters, are virtually exempt from expensive regulation. It may be that it’s going to become harder and harder to keep this cow sacred. At a minimum, it’s going to make for an interesting debate. 
 

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In his State of the Union speech, President Obama promised / threatened (which eye you use affects the view) to increase nuclear power generation. His proposed budget for fiscal year 2011 gives support to that promise.

The proposed budget increases loan guarantees for nuclear power generation from $18.5 billion  to $54.5 billion. While the proposal certainly has its detractors, any program that gets its funding tripled in the present economic times should be very happy. Is this a setback for renewable energy sources like solar and wind power? The answer appears to be, no.

While the proposed budget certainly increases the support for nuclear power production, it also cut $36 billion in tax benefits over the next decade for oil and gas and $2.3 billion for the coal industry (though, to be fair, these cuts are like giving a manicure to a polar bear) and provides for credit subsidy funding of $500 million to support $3 to $5 billion of loan guarantees for energy efficiency and renewable energy projects. Taken together, these proposals would appear to be a pretty strong indication that Obama wants: 1) less oil and coal; 2) more renewable energy; and 3) more nuclear power generation. 

In the end, Congress will make its own decision as to what projects to fund, but it is notable that this President seems to be indicating that the extreme left voices that rail against allowing any nuclear power need to be ignored. If climate change legislation has a chance in 2010, a nuclear component will certainly be necessary and the President’s proposed budget simply reflects this political reality.

With his statement at the State of the Union and now with his support in the proposed budget, it will be difficult for Republicans to argue that this President is not trying to find a middle ground for climate change legislation. (Who says he hasn’t learned anything from the health care debacle). Now we’ll see if Congress (i.e. the Senate), sees it the same way.

RELATED POST: Will Nuclear Power Be Part Of The Solution?
 

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The game show that is Congress is nearly done with its first act of the new year.  The performer, Health Care Reform (H.C.R.), started out great.  In her first thirty seconds she hit all the high notes and put on a show that would make Madonna blush. But the last minute was a killer.  The stones started flying.  A couple of the 60 mice (an integral part of the show) refused to dance until they got some extra pay. And parts started falling off of her costume until, in the end, she was almost unrecognizable from her entrance.  Simon and company were brutal on the act.  We'll just have to wait for the public's official vote, but it doesn't look good.

If you look carefully in the wings, you'll see the next act. It's a big guy, probably a baritone, and he's . . . trembling like a wet kitten  C.C.L. (Climate Change Legislation) has been watching what happened to H.C.R. and appears to be looking for the exit.  A quick text message to bolster C.C.L.'s spirits might be in order:

C.C.,

You need to buck up, kid. It's not as bad as it looks. Let me give you three great reasons why they're gonna love you.

First, you're not even distantly related to H.C.R.  Sure, you've got the same promoter, but you've been practicing a lot more than her and the number you're going to do is a lot more popular.  Comparing your acts is  like comparing apples and cars -- you'd like to have them both, but one has nothing to do with the other.

Second, you may not know it, but your fan club grew last week.  You know that group that you thought hated your song?  A bunch of them actually love it!  Turns out that they think they can might be able to make some money off of it. Two separate corporate groups, having a total of more than 150 businesses want you to succeed.  I'm talking heavy weights here: Toyota, Alcoa, PepsiCo, Shell and Campbell's.  The Republican members of the audience, the one's with the really big rocks, are going to think twice about sending those rocks your way with supporters like these.  Don't believe me?  Listen for yourself.  One group put an ad in the Wall Street Journal and said:

How will America take back control of its energy future while enhancing our national Security? . . . How can we protect our natural resources and future generations from climate change? . . . We believe it's time for Democrats and Republicans to unite behind bi-partisan, national energy and climate legislation that increases our security and limits emissions, as it preserves and creates jobs.  It's a question of American leadership.

And another group sent a letter to the President and Congress saying:

American business leaders from companies of all sizes and sectors of our economy call on you to move swiftly and boldly to enact comprehensive energy and climate legislation. . . .  We need strong policies and clear market signals that support the transition to a low-carbon economy and reward companies that innovate. . . . We stand ready to to work with you to create and grow this important economic sector.  Now is the time to act.  Together we can lead.

Wow!  You can almost feel the love.  And this comes from the group that everybody said didn't like your song.  All H.C.R ever got was hate mail and death threats.  You've got some great buzz. 

And finally, news from the group that actually counts --your  voting public.  Two new polls show that there is strong bipartisan support to take action on climate change.  I know it sounds contrary to what you heard last week, but do polls lie?   That's your song that they're talking about!  (A small word of advise: Before you start singing, announce that your song is in support of making America safer from our enemies.  Don't ask why, just do it).

I see that Simon is just about done ripping apart . . . err . . . providing creative criticism to H.C.R.  In a few minutes it will be your turn.  Stand up straight, look the camera in the eye and belt out that song like our life depended on it (because it just might).

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When one car collides with the side of a second car, the results are usually bad.  That's what T. Boone Pickens recently did to wind power.  The funny thing is, they used to ride in the same car.

T. Boone is the promoter of what is referred to as the "Pickens Plan."  That Plan originally emphasized wind power as its solution to the energy and foreign oil problem.  He even planned a 4,000 megawatt wind farm in Texas and went so far as to order 667 turbines from GE to get the project started.

The wind plans are no more. While the Pickens Plan will go on, it is now focused on natural gas as the solution. The question is why the change of heart. 

Well, for T. Boone, it's not so much a change of heart as it is a change of wallet.  He has explained that the price of natural gas is so low that it doesn't make sense to pursue the relatively more expensive wind solution.  Recognizing that T. Boone has more money than most individuals, corporations or countries, does this mean that wind energy is dead?  It doesn't appear so.

Currently, the U.S. has 31,109 MW of wind power production, with another 5,567 being planned.  Wind projects in Iowa and Canada are moving forward.  130 turbines off of the coast of Massachusetts appear to be close to approval.  China is likely to become a world-wide leader in wind generation and is placing turbines both in China and the U.S.  Europe is scheduled to pick up 1,000 MW of wind energy this year.

Certainly the recession and T. Boone have delivered blows to the wind industry.  But these seem to be temporary problems.  While cost is an issue, subsidies for every sustainable energy source will be necessary to make them viable.  For wind, the real issue is creating the transmission lines necessary for delivery of the wind energy from the areas that have the wind to the areas that need the energy.   That's an issue that the Midwestern states will need to address soon.  But don't count out wind just because T. Boone is a bad driver.  The accident didn't total the car, it just left it a little dented.   All indications are that wind will continue to be a significant player going forward. 

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I will not make it a practice to review cases from other countries — there are enough interesting ones from our own courts. However, a case decided on November 3, 2009, in London is worth a look. 

The case is entitled Grainger, P.L.C. v. Mr. T. Nicholson. It was in the Employment Appeal Tribunal which hears cases of employment discrimination. The case was at a very early stage, similar to our summary judgment proceeding.

 Mr. T. claimed that he was terminated unfairly by Grainger, P.L.C. because he was discriminated against based on his asserted philosophical belief concerning climate change and the environment. In particular, Mr. T. contended that:

I have a strongly held philosophical belief about climate change and the environment. I believe we must urgently cut carbon emissions to avoid catastrophic climate change. 

 

It is not merely an opinion but a philosophical belief which affects how I live my life including my choice of home, how I travel, what I buy, what I eat and drink, what I do with my waste and my hopes and my fears.

The trial judge decided that Mr. T's claim of discrimination was not cognizable under English law. He ruled that Mr T’s philosophical belief could not be the basis for a wrongful termination claim because the regulation in question stated that discrimination against another person occurs if, “on the grounds of the religion or belief of B, A treats B less favorably than he treats or would treat other persons.” The regulation also provided that “belief” means “any religious or philosophical belief.” The trial judge held that belief in climate change did not rise to the level of a philosophical belief protected by the regulation. The appellate court disagreed.

On review, the Court examined the regulations and quickly determined that the problem was the definition of “philosophical belief.” The Court went on to define the standard of when a philosophical belief rises to the level of a protectable interest, at least under the English employment regulation. He held that there were five conditions which must be satisfied for a philosophical belief to be protected:

1.      The belief must be genuinely held;

2.      It must be a belief and not an opinion or viewpoint based on the present state of information available;

3.      It must be a belief as to a weighty and substantial aspect of human life and behaviors;

4.      It must obtain a certain level of cogency, seriousness, cohesion and importance; and

5.      It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

(Now here is a judge who understands how to create a standard that trial attorneys can embrace).

In applying the standard to the case of Mr. T, the Court held that his philosophical belief about climate change and the environment could, indeed, satisfy each of the five conditions. He was careful not to say that Mr. T.’s belief did, in fact, satisfy each of the conditions because the testimony had not yet been presented that would challenge, for example, whether the belief was genuinely held. Also, the Court didn’t address the question of whether the employer’s act of dismissal was in retaliation for Mr. T. acting on his belief or for some other reason. Those questions remain for trial. The Court simply held that a belief in climate change could be a protectable, philosophical belief.

So, what else might be deemed a philosophical belief worthy of protection? Interestingly, the opinion gives a number of examples: Humanism, veganism, pacifism, vegetarianism, socialism, Marxism, communism, capitalism and abstinence from alcohol made the cut. The Court saw all of these satisfying the five-part test.

What didn’t qualify? The opinion was a bit sparse on examples, but the Court explicitly found that racism and homophobia would not be philosophical beliefs that are worthy of respect in a democratic society.

In perhaps the unkindest cut of all, the Court found that a belief in the supreme nature of Jedi Knights would “fail on the basis of non-compliance with at least four of the limitations suggested above.” The Court did not identify which limitation might be satisfied.  (The next London Comic Con should be lively).

Some have said that the opinion could be used to show that climate change is, in the end, a matter of faith, not science. Others contend that it does not stand for that proposition.  

As luck would have it, we don’t need to address the issue because the case wasn’t decided in the United States.  However, before one jumps to the conclusion that it couldn’t happen here, I would point out an interesting statement recently made by Representative Nancy Pelosi at the Detroit motor show where she said that green technology is "a moral issue if you believe, as we do, that this planet is God’s creation.” 

If she's right, I wonder if there is an argument about separation of church and state somewhere in there.

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Let there be no question: EPA is very serious about adding significantly to the requirements imposed on developers, cities, homeowners and businesses relating to stormwater discharges from development and redevelopment sites.  Either that, or someone in the stormwater section forgot to take a break for the holidays.

EPA has decided that it will hold five "listening sessions" designed to elicit input as to whether it should "strengthen stormwater regulations and to establish a comprehensive program to reduce stormwater from new development and redevelopment."  Bear in mind that this is in addition to the proposal to send a 61-page questionnaires to 1000 developers seeking financial and project information. 

The press release for the listening sessions provided the following description:

EPA seeks input on the following preliminary regulatory considerations: expand the area subject to federal stormwater regulations; establish specific requirements to control stormwater discharges from new development and redevelopment; develop a single set of consistent stormwater requirements for all municipal separate storm sewer systems; require those sewer systems to address stormwater discharges in areas of existing development through retrofitting the sewer system or drainage area with improved stormwater control measures; and explore specific stormwater provisions to protect sensitive areas.

The sessions will be held:

·         January 19, 2010, 10 a.m. to 3 p.m. at EPA Region 5 Office, 77 W. Jackson Blvd., Chicago

·         January 20, 2010, 10 a.m. to 3 p.m. at EPA Region 9 Office, 75 Hawthorne Street, San Francisco, Calif.

·         January 25, 2010, 10 a.m. to 3 p.m. at EPA Region 8 Office, 1595 Wynkoop Street, Denver, Colo.

·         January 26, 2010, 10 a.m. to 3 p.m. at EPA Region 6 Office, 1445 Ross Avenue, Suite 1200 Dallas, Texas

·         January 28, 2010, 10 a.m. to 3 p.m. at EPA HQ Office, Ariel Rios Building, 1200 Pennsylvania Ave. NW, Washington, D.C.

The public can register by going to the Web site below.

EPA will accept written comments on the preliminary rulemaking considerations until February 26, 2010.

More information on listening sessions, the potential rule and instructions for submitting written comments: http://www.epa.gov/npdes/stormwater/rulemaking

Those who will be affected need to take this initiative very seriously.  According to the FederalRegister, EPA is relying heavily on a report of the National Resource Council entitled "Urban Stormwater Management in the United States."  This document is a light read of 529 pages and it advocates a fundamentally new system of stormwater regulation which would impose additional costs and substantially greater regulatory oversight, particularly for cities.  The new system discussed by NRC would apply not only to "building on previously undeveloped sites, but also to redeveloping and retrofitting existing development" (page 406).  Rather than apply to individual sites, the new permitting system would be "watershed based" (pages 346, 387 and 419).  That is, the entire watershed, wherever it is located, would be the permitted area, requiring heavy involvement by cities.  According to the report:

At the heart of the proposal for a new system of regulating discharges to the nation's waters is issuing permits to groups of municipalities in a watershed operating as co-permittees under a lead permittee.  Furthermore, the proposal envisions these municipal permittees assuming responsibility for and implementing the permits for all public and private dischargers in their jurisdiction. (Page 411).

This is your chance.  Written comments can be made or, if you're near one of the five cities, you can go and be heard (so long as you sign up by January 15th and you limit your comments to three minutes).  Speak now or forever hold your stormwater.

Related Posts: Stormwater Regulation of Developed Sites Coming?

                       New Stormwater Regulations Rain Down on Developers

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