Waiting for the Stormwater Rule

by Dave Owen

September 24, 2013

Last week, E&E News reported a breakdown in talks over EPA’s long- delayed stormwater rule. In 2009, in a settlement with the Chesapeake Bay Foundation, EPA promised a new rule by November, 2012. That deadline has long since passed, and apparently EPA and environmental groups are at an impasse in their negotiations over a  new timeline.

The causes for the delay, which have been thoroughly covered here, are many, but all they boil down to a central problem: urban stormwater is hard to regulate, and EPA is struggling to figure out how to improve the existing system. There are several key reasons for those challenges. 

 First, urban stormwater problems generally arise from the combined  runoff of very large numbers of properties. That makes an individual  permitting approach, which has been quite successful for discharges of  industrial and wastewater treatment plant effluent, hard to use; writing  permits for millions of landowners probably isn’t administratively or  politically feasible. Urban stormwater therefore requires alternative regulatory structures, but coming up with effective ones hasn’t been easy.   

Second, stormwater raises some interesting federalism issues. Many of the most promising solutions involve land use planning, and regulation of land use has long been the third rail of environmental law (I’ve argued elsewhere that it shouldn’t be, and that federal law can be a positive influence on local land use decision-making, but the political realities remain challenging). The Clean Water Act and EPA’s existing regulations dance around that challenge, at least to some extent, by requiring medium and large municipal stormwater systems—known in CWA parlance as MS4s—to serve as the National Pollutant Discharge Elimination System (NPDES) permit holders for the systems they manage. That obligation creates a semi-cooperative federalism scheme, in which municipalities must regulate the private and public properties that discharge into their systems. But in my conversations with municipal stormwater managers, I’ve heard a lot of frustration with that system. They generally feel that their obligations are ambiguous; that it’s unfair for them to bear those obligations while less developed areas remain outside the permitting program; and that, even if the obligations were more clearly defined, they just don’t have the money to put a more robust regulatory program into effect.

As that last complaint suggests, lurking behind all these challenges are cost issues. Those issues don’t apply to all stormwater regulation. In fact, minimizing stormwater impacts in an undeveloped watershed actually can be quite cost-effective, even if one ignores the harder-to-value environmental benefits that cost-benefit analysis often excludes. Many of the best fixes involve integrating vegetated spaces into landscaping and consolidating development—in other words, doing many of the things that smart growth advocates have promoted for a variety of other sensible reasons. Consequently, a stormwater-sensitive development can actually be a very nice place to live or work. But compelling that sort of development would push EPA further into the realm of land use planning, where, for issues related to politics and federalism, it may be reluctant to go. Instead, the Clean Water Act’s regulatory structure focuses on waterways that already are impaired and on landscapes that already are developed. There are obvious benefits to that approach: among others, developed watersheds typically have more people, less anti-regulatory politics, and higher-value real estate, which means more of a constituency for watershed restoration and more money to support it. But it also means focusing on some of the most expensive fixes.

This all leaves EPA in a bind. In its settlement, it made the following commitments (in addition to many others not directly related to the stormwater rulemaking):

By September 30, 2011, EPA will propose a regulation under section 402(p) of the Clean Water Act to expand the universe of regulated stormwater discharges and to control, at a minimum, stormwater discharges from newly developed and redeveloped sites. As part of that rulemaking, EPA will also propose revisions to its stormwater regulations under the Clean Water Act to more effectively achieve the objectives of the Chesapeake Bay TMDL. In developing the proposed rule, EPA will consider the following elements related to stormwater discharges both nationally and in the Bay watershed: (1) additional requirements to address stormwater from newly developed and redeveloped sites; (2) requiring development and implementation plans by MS4s to reduce loads from existing stormwater discharges; and (3) explanding the definition of regulated MS4s. EPA will take final action by November 19, 2012.

That all sounds sensible, and many stormwater managers would agree that these are important next steps. But they also involve ratcheting up pressure on municipalities and extending EPA further into the role of regulating new development. Neither step, at present, is an easy sell.

Nevertheless, in this arena, as in many regulatory arenas, there are promising innovations that might alleviate a bit of the difficulty. One example comes from the city where I teach. Portland, Maine is currently in the process of developing a stormwater fee program. The fees will be pro-rated to the amount of impervious cover owned by each landowner, with reductions available to landowners who take steps to reduce the impacts of their stormwater runoff. In the short term, that funding will provide city managers with a pool of money they can use to address combined sewer overflows and other major stormwater challenges. It also will generate that money equitably, with people and entities who contribute a larger share of the problem contributing more to the solution, but with everyone—small landowners included—chipping in. In the long term, the city hopes that the persistent pressure of an economic signal can change the ways people develop, redevelop, and manage their land. If it works, the program could demonstrate that urban stormwater is a more tractable problem than people have traditionally thought, and that the increased regulatory controls that EPA may yet seek actually can be implemented in ways that are equitable, efficient, and, ultimately, successful.

Portland’s story also highlights a potential role for those of us who teach environmental subjects, including law. According to the municipal staff I’ve talked to (in Portland and other surrounding cities), one of the biggest challenges of local stormwater regulation is education. They may care quite deeply about environmental quality, but most people just don’t understand urban hydrology, stormwater pollution, or stormwater law, and they’re often baffled by proposed regulatory responses. For a city implementing a stormwater fee program, one of the largest challenges is public education. But teachers can help. I suspect urban stormwater occupies a minor place in most environmental law syllabi, and studying the ecology of urban environments has not been ecologists’ traditional focus. But if we spend even a little more time teaching about urban water quality, we’ll educate our students about a very important public policy issue—and an issue to which many people both in and outside of the legal field devote many hours, billable or otherwise, every day.

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Dave Owen is a Professor of Law at the University of California, Hastings, College of the Law.

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