USEPA delays draft proposals for nationwide stormwater regulations…again

Bernkopt Goodman LLP
Kenneth F. Whittaker and Margaret R. Stolfa

July 19, 2013

If Robert Frost had anticipated that USEPA would someday exist, he might have titled his iconic poem “Stopping By Woods on a Rainy Evening.” The agency has miles to go and promises to keep, but once again has missed its promised deadline to issue updated nationwide stormwater management regulations that affect “post-construction” sites such as roadways, subdivisions and commercial buildings.

To summarize the long history of regulatory angst regarding stormwater management, the US Environmental Protection Agency (USEPA) was directed to engage in this regulatory area as a result of the 1987 revisions to the Federal Clean Water Act. Phase I stormwater management regulations focusing primarily on large industrial dischargers, Municipal Separate Storm Sewer Systems (“MS4s”) and construction sites greater than 5 acres, were forthcoming in 1990. In 1999, and following a judicial consent decree in response to missed promulgation deadlines, Phase II regulations were issued addressing smaller MS4 systems (populations less than 100,000) and construction sites between 1 and 5 acres. Covered facilities were required to apply for and obtain a NPDES discharge permit by March 2003, and to implement certain minimum stormwater management controls to protect receiving water quality. As with any large regulatory program, implementation of the Phase I and II regulations was not without controversy and many stakeholders, principally but not exclusively municipalities, raised technical and cost concerns.

In 2007, the agency sought input regarding possible improvements to the stormwater management program to provide a greater focus on nutrient control and to implement a watershed permitting and protection-based approach, rather than concentrating on control of individual pollutants. USEPA initiated information gathering and public dialogue on these issues and continues to evaluate a variety of regulatory options, including greatly increased attention on so-called “post-construction” sites, i.e., those undergoing new development or re- development.

Tired of waiting for the revised stormwater management regulations, the Chesapeake Bay Foundation (representing a resource area severely impacted by stormwater runoff from myriad sources) brought suit against the agency, the result of which was a 2010 settlement agreement requiring USEPA to propose draft regulations by September 2011. This deadline was missed, followed by a promised delivery date in April 2012, and then in June 2013. This latest deadline, almost two years after the originally promised date, has passed; the draft regulations have not appeared and as of this writing a new deadline has not been proposed. Current reports indicate that USEPA and the Foundation have entered into a near-term agreement to meet by July 18, 2013 and attempt to develop a path forward over the following 60 days. Substantial further delays in the regulations can nonetheless be anticipated as the estimated time period between issuance of the proposed regulations and the promulgation of the final version has ranged from 1 – 1.5 years.

It is apparent and not unsurprising, given the technical and administrative complexities and potential cost of any nationwide regulations, that the agency has an extraordinarily difficult task on its hands. In the meantime, USEPA continues to enforce the current requirements. In Massachusetts, MassDEP also imposes stormwater management requirements through wetlands, waterways and water supply permitting. We will continue to monitor the situation, and be prepared to review in detail USEPA’s proposed regulations in terms of their impact on the interests of our clients, once they are finally issued.

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. Whittaker and Ms. Stolfa and may not reflect the opinions of Synergy Environmental, Bernkopt Goodman LLP or either of those firms’ clients.

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