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

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?"

RELATED POSTS:

Agricultural Runoff Comes Under Scrutiny

Clean Water, Agriculture and Sacred Cows

The Train's A-Comin'

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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.

RELATED POSTS:  Agricultural Runoff Comes Under Scrutiny

                                   The Rain's A-Comin"

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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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