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

Obtaining information can be costly.  In the area of stormwater regulation, it is an expense that EPA wants to pass on to a chosen few.

As previously reported, EPA held six "listening sessions" in early 2010 to consider:

• Expanding the area subject to federal stormwater regulations;

• Establishing specific requirements to control stormwater discharges from new development and redevelopment;

• Developing a single set of consistent stormwater requirements for all MS4s;

• Requiring MS4s to address stormwater discharges in areas of existing development through retrofitting the sewer system or drainage area with improved stormwater control measures; and

• Exploring specific stormwater provisions to protect sensitive areas.

EPA has decided to go forward and is proposing to survey owners and developers of newly developed sites, NPDES permitting authorities, owners and operators of MS4s and transportation-related MS4 entities.  These are revised questionnaires from those originally proposed in October of 2009.  EPA intends to propose a rule to control stormwater from, at a minimum, newly developed and redeveloped sites and to take final action no later than November 2012. 

Turning to the burdens associated with obtaining the requested information, EPA says:

• The number of potential respondents is 5,516;
•  It will take an average of 30 hours to complete;
•  The total cost of compliance will be $7,000,000;
•  There will be 167,669 hours expended; and
•  The long questionnaire for owners will take 73 hours at a cost of $3,435.

EPA contends that it has the authority to compel responses under sections 304(i), 308 and 402(c) of the Clean Water Act.  Even if EPA has the authority to take this information without compensating the parties for the time and money they will expend to comply (under threat of criminal prosecution if they don't respond), should it?  Maybe it would be wise to expend some resources on determining whether other non-point sources (which account for more than 70% of water pollution) should receive scrutiny before adding yet more regulation to relatively small contributors. 

In any event, you have until June 9, 2010  to comment on EPA's need for the information, the accuracy of the burden estimates and suggestions on how to reduce the burden (presumably such suggestions should be constructive and physically possible).

RELATED POST: The Train's A-Comin': More Stormwater Rule Changes

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Storm water runoff from agricultural property has long been a problem for water quality, primarily because there is virtually no regulation of that runoff. That might be changing.

In a new report issued by the Environmental Law and Policy Center and the Mississippi River Collaborative, there is a discussion of agricultural runoff and a review of the regulatory programs in California, Delaware, Iowa, Kentucky, Maryland, Oregon and Wisconsin. Among other things, the report emphasizes something that is frequently espoused by clean water advocates. That is:

Nonpoint source pollution is the greatest threat to water quality in the United States, yet neither states nor the federal government has taken adequate steps to diffuse that threat. Nonpoint source pollution is one of the most pervasive forms of water pollution and is not directly regulated the Clean Water Act. (Page 3).

According to the Report, since agricultural runoff is a large contributor to water pollution,

Current approaches to protect water quality will not succeed in controlling nitrogen and phosphorus pollution. The Clean Water Act explicitly exempts agricultural storm water runoff and irrigation return flows from regulatory requirements under the Act and its National Pollution Discharge Elimination System (NPDES) program. Discharges from Concentrated Animal Feeding Operations (CAFOs) are covered by the NPDES permit program, but under U.S. EPA CAFO rules, many CAFOs may not seek NPDES coverage because they do not “propose to discharge.” In practice, this means that manure from these facilities is supplied to land, where storm water runoff is exempt from regulation. Consequently, the largest contributors of nitrogen and phosphorus are scarcely regulated at the federal level and pollution problems continue to worsen. (Page 2).

The Report goes on to examine the limited regulation found in the seven reviewed states and then analyzes the various practices that could be used by the states to control nonpoint pollution. Those five practices are:

• Vegetative buffer requirements
• Land application setbacks
• Winter manure application prohibitions
• Livestock exclusion requirements
• Fall fertilizer restrictions

According to the Report, these are “basic, common-sense practices that should be followed by all agricultural operations.” So why aren’t they?

There are any number of possibilities, but the most obvious is that states that rely heavily on agriculture for their economies are not going to impose expensive restrictions on farming practices. This is certainly a valid consideration and, historically, there have been enough of those states to prevent a change on the federal level and with regard to the individual states, there are enough state legislators that are concerned about rural economies that it is difficult to make radical changes on the state level.  There are some indications that the sacredness of these cows may be changing.

The ELPC Report appears to be making a big splash and it comes at a fortuitous time -- the interest in the environment seems to be increasing and will likely continue for at least the next three years.

Also, in the Iowa Environmental Protection Commission’s Annual Report and Recommendations, issued on January 19, 2010, the EPC issued its recommendations for future legislative action saying:

New legislation to address non-point source pollution from agriculture and urban runoff is needed. Non-point sources of pollution are the major contributor to nutrient and bacterial impairment of Iowa’s water and these sources must be controlled to achieve Iowa’s clean water goals.

(It should be noted that the EPC’s admonition was ignored in that the Iowa legislature ended its 2010 session yesterday without passing any new environmental laws).

Finally, the Des Moines Register immediately reported on the ELPC Report and noted that Wayne Gieselman, Iowa Department of Natural Resource’s Administrator of Environmental Services, said that the requirement of no-crop zones along streams together with voluntary buffer-stripped programs, “could gain traction in Iowa if the federal government put up enough cash for rental payments to farmers.”

This is all to say that it may be that there is a new found willingness to consider what used to be off limits. But as with everything political, it will take time -- and, undoubtedly, money. 
 

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