Surprise– USEPA Misses Another Deadline for Issuing Draft Stormwater Regulations

Greenberg Traurig, LLP
Hamilton Hackney III

June 19, 2013

If you have been following this issue closely, it will come as little surprise that USEPA has missed yet another deadline for issuing a draft rule regulating stormwater discharges from developed and redeveloped sites across the country. This proposed stormwater rule is another example of the increasingly criticized “sue and settle” practice employed by citizens groups and USEPA. Following litigation filed in 2010 over water quality impacts to the Chesapeake Bay, USEPA entered into a settlement agreement with the Chesapeake Bay Foundation (CBF). Under that agreement, USEPA agreed to issue national stormwater regulations by September 2011 that regulated post- construction stormwater discharges from developed and redeveloped sites. That deadline was missed, as was the subsequent April 27, 2012 deadline, as was the subsequent June 18, 2013 deadline.

These delays are in fact understandable, given the enormity of the regulatory task USEPA accepted under the settlement agreement. Developing regulations that meaningfully improve water quality, that do not impose excessive compliance costs, and that take into consideration the wide range of weather, drainage, development patterns and other variables around the United States is a monumental undertaking. One could logically ask why USEPA agreed to accept this obligation in order to settle a lawsuit that only concerned water quality impacts to the Chesapeake Bay.

Under the settlement agreement’s dispute resolution provisions, USEPA and CBF have 30 days to meet and confer and another 60 days to negotiate a resolution to the missed deadline. Unless it agrees to additional extensions, CBF could then bring the matter before the federal district court to request a judicially mandated deadline. In practical effect, USEPA has 90 days to issue the draft regulations for public review and comment, or else it will need to explain to a federal district court judge why it is nearly two years late in meeting its commitment. Perhaps at that point, the judge may ask USEPA why it agreed to undertake this Herculean task in the first place.

H. Hamilton Hackney III is an attorney with Greenberg Traurig, LLP. He is in their Boston, MA office. He may be reached via e-mail hackneyha@gtlaw.com or phone: 617-310-6090.

This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Hackney may not reflect the opinions of Synergy Environmental, Greenberg Traurig LLP or either of those firms’ clients.

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