EPA Stormwater Policy Explodes Quietly
With little fanfare and in as subdued a manner as possible, EPA has significantly changed the face of stormwater regulation in the United States.
In a November 22, 2002 memorandum by the Director of the Office of Wetlands, Oceans and Watersheds, EPA declared that “EPA expects that most water quality based effluent limits for NPDES-regulated municipal and small construction stormwater discharges will be in the form of best management practices, and that numeric limitations will be used only in rare instances.” That is, EPA’s policy was that for a small construction and municipalities, it would be a very rare instance in which numeric limitations would be placed on stormwater discharges. Rather, regulation would rely on the use of best management practices and, if these were followed, the construction site and/or municipality would be in compliance with the regulations. By a memorandum dated November 12, 2010, issued by the Office of Wastewater Management, that policy has now been turned on its head.
According to the new policy, since 2002, the regulated community and stake holders have gained “more experience and knowledge.” Apparently as a result of this experience and knowledge,
EPA now recognizes that where the NPDES authority determines that MS4 discharges and/or small construction stormwater discharges have the reasonable potential to cause or contribute to water quality standards excursions, permits for MS4s and/or small construction storm water discharges should contain numeric effluent limitations where feasible to do so. EPA recommends that NPDES permitting authorities use numeric effluent limitations where feasible as these types of effluent limitations create objective and accountable means for controlling stormwater discharges.
EPA’s policy change is dramatic. Going from a subjective standard of “best management practices” to an objective standard of numeric limitations will fundamentally change the way that discharges are regulated and will add significantly to the cost of construction and municipal services.
Moreover, EPA has not provided any guidance on what the numeric limitations should be. In a recent instance in which EPA decided to pick a numeric limitation for construction site runoff, the Agency was challenged and was unable to defend its choice of 280 NTUs as a numeric turbidity limit. As a result, it was forced to withdraw the numeric limitation.
For those who don’t see this as a radical change in the regulatory scheme, I would note the comments of Alexandra Dunn, the Executive Director and General Counsel of the Association of State and Interstate Water Pollution Control Administrators, who told the BNA Environment Reporter:
This is an important memorandum that could represent a fairly dramatic shift in the program. If it is, we are going to have to have more conversations with EPA. We have heard from states that the memo poses some concerns for them. We are still digesting it. This raises some questions. Our initial reaction is concern.
Ms. Dunn added that state officials were caught by surprise and not aware that EPA was planning these significant policy changes. She said that the Association is intending to meet with EPA in December.
There is no real debate over whether water quality needs to be improved.
Just looking at the list of more than 40,000 impaired waters tells us that. Rainfall has an impact on what ends up in those waters and since rain falls everywhere, it needs to be regulated if water quality is to be addressed. But there is a practical component to this regulation. The vast sums required to corral mother nature need to be spent where they have a real impact. Over the past five years or so, EPA has spent an inordinate amount of time, money and effort addressing a very small aspect of stormwater regulation -- construction sites and municipalities -- which has resulted in dramatic increases in costs of goods and services with a disproportionately small impact on water quality. If you want clean water in the United States, further regulating point sources, particularly constuction and municipalities, is not the answer. Until the large, non-point sources are addressed, we are not addressing the real problem. And until then, coming up with yet more, onerous regulation that even EPA can't get right, probably isn't the best solution.
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