In December 2009, EPA commenced rule-making efforts to consider changes to the stormwater regulations, including the setting of numeric limits for pollution caused by construction related to new development and redevelopment. Current plans are for EPA to propose the rule in late 2011 and have it finalized in 2012. As I have previously posted, the change is unexpected, significant and expensive.
Much of the weight of the revised rules will fall on MS4 cities. As a result, two groups that oversee environmental issues for states and cities have provided some preliminary comments to the EPA. Each of these comments are interesting in their own right and raise many issues related to the proposed changes. For our purposes here, I want to focus on just one of those issues: the proposed expansion of the geographical areas to be regulated.
In this regard, the National Association of Clean Water Agencies commented:
NACWA is generally supportive of efforts to bring previously unregulated discharges within the NPDES permitting structure . . . . NACWA is particularly supportive of expanding the NPDES stormwater program to currently unregulated sources if it is done as part of an overall watershed approach to permitting that looks at all sources of water quality impairment, including agricultural runoff.
In a second set of comments provided by NACWA to EPA, they state:
[Bringing previously unregulated discharges into the NPDES program] is necessary to effectively manage any watershed and would help to level the playing field by making currently exempt discharges responsible for the quality of the stormwater rather than placing all of the burden on existing Phase I and Phase II communities and construction sites.
In a comment provided by the Environmental Council of the States, there is a more subtle approach:
EPA proposes several options to expand the geographical areas beyond the current “urbanized area boundary” coverage. Among these options is the use of Metropolitan Statistical Areas and other techniques that will greatly increase the areas covered by this rule. Some of these options might even justify coverage in rural areas. Is it the agency’s intent to broaden the scope of this rule beyond areas dense human population?
In each of these comments, the point being made is that agricultural runoff needs to be regulated. While compliance with the current narrative standards for stormwater would be difficult for most farming operations, a numeric standard on nitrogen and phosphorus would likely have a dramatic impact on the cost of farming.
The point of all of this is to identify that EPA has, once again, “stepped in it.” Entities like the Farm Bureau, the National Pork Producers Association and every Republican will begin the process of turning this into a political question. Farm-state Congresspersons (and lobbyists) will be heard loudly and often and more accusations of overreaching by EPA will be made. Still, the forces that are calling for non-point source regulation are beginning to increase and organize. They don't seem to be at a tipping point yet, but each time EPA imposes additional regulation on point sources, more people seem to point at agriculture and say "what about them?"