The EPA is delaying its long-awaited post-construction stormwater rule. The agency recently announced it will propose the rule by June 2013 and finalize it by December 2014, delaying by a further 18 months a rule that was originally supposed to be completed by last April.
Background
The rule stems from 2008 recommendations from the National Academy of Sciences and a 2010 settlement with the Chesapeake Bay Foundation and other environmental groups. As part of the settlement, EPA agreed to develop a rule under section 402(p) of the Clean Water Act (CWA) to set first-time stormwater discharge controls for development sites once construction is completed. The rule is expected to set a first-time stormwater retention standard and provide regulated entities with several suggested compliance options, including green infrastructure techniques, to limit runoff.
The rule is also to include requirements for the development and implementation of retrofit plans by municipal separate storm sewer systems (MS4s) to reduce loads from existing stormwater discharges and expanding the definition of regulated MS4s. The rule was originally slated for April 2012 but the agency has repeatedly exceeded its deadlines to propose the rule, in part because of difficulties in assessing its benefits in terms of pollution control and ecological health relative to the costs associated with more stringent stormwater requirements.
City of Springfield’s Lawsuit
There’s been no shortage of criticism about the proposed post-construction stormwater rule from builders, municipalities and others who fear not only costly requirements but also the usurping of local land use authority. Local and state governments already suffering from budget deficits in part due to sluggish housing growth have expressed that the negative impact on development and economic growth will be devastating, especially since cities are faced with several other pollution control mandates from EPA. Springfield is one of several jurisdictions pushing back against some of EPA’s efforts at controlling stormwater as a means of bringing waterbodies into compliance with the Clean Water Act. The lawsuit filed in October of 2011 in federal court challenges the EPA’s new rules on Total Maximum Daily Load (TMDL) limits of pollutants into Wilson’s, Jordan and Pearson creeks. The EPA issued the TMDL and subsequent stormwater reductions without specifically addressing which pollutant or pollutants the stormwater reductions were meant to reduce by surrogate.
The city argued the proposed limits are unattainable. TMDL rules are designed to limit the amount of pollutants that flow into a stream and EPA is charged with identifying the pollutant to be controlled. New EPA rules that don’t identify a specific pollutant will require the city “sharply and substantially” reduce all stormwater runoff across the city.
Settlement in the Works
Parties are in negotiations to settle this case challenging the Springfield TMDLs. EPA Region VII recently settled a case brought by the City of Columbia, MO, and other local governments against the Hinkson Creek TMDL, largely turning over pollution control in the creek to the state and local governments. The settlement comes as EPA has given some indication of moving away from this approach – it has recently removed from its website a controversial memo suggesting that stormwater flow could be regulated as a surrogate for pollutants. As well, a suit has recently been filed by state and local entities in Virginia against the EPA charging the agency’s 2011 total maximum daily load (TMDL) for the Accotink Creek constitutes a “massive expansion of EPA’s regulatory power” by regulating water quantity rather than water quality, as stipulated in the CWA.