Another Strong DOJ Settlement on Stormwater Pollution – Outside of the Chesapeake Bay Watershed

On May 12, 2009, the federal government finally got serious about protecting the Chesapeake Bay. That’s when President Obama signed Executive Order 13508 on Chesapeake Bay Protection and Restoration, which declared that the federal government would put its shoulder into the multi-state effort to restore the Bay. Taking turns at a podium perched on a bluff overlooking the Potomac River, the Governors of Maryland and Virginia and the Mayor of Washington D.C. praised the President that day for ordering the U.S. Environmental Protection Agency (EPA) and other federal agencies to take on this new leadership role that would culminate in the Chesapeake Bay Total Maximum Daily Load (Bay TMDL) the following year.

When it was EPA Administrator Lisa Jackson’s turn at the microphone, she pledged that EPA would take a tough stance when necessary to compel states to finally follow through with their promises of action: “I can assure you that the EPA is ready to enforce these goals.”

When the ink had dried on the Bay TMDL and the many supplementary materials written by the Bay states and EPA were released, proponents of the new effort had good reason to be hopeful that she meant it. EPA seemed serious about fulfilling Lisa Jackson’s pledge and President Obama’s order “to make full use of its authorities under the Clean Water Act to protect and restore the Chesapeake Bay and its tributary waters.” Section 7 of the Bay TMDL set forth the Reasonable Assurance and Accountability Framework, and both EPA’s Office of Enforcement and Compliance Assurance and the Mid-Atlantic Region 3 Office crafted their own memoranda to give teeth to that framework. One of the most basic, but important, components of that accountability framework was simply to declare that the Bay watershed was a priority for which EPA would devote additional attention and resources. In short, EPA would “increase and target federal enforcement and compliance assurance in the watershed.”

Fast forward to 2016, and the states are falling off track, and unfortunately, Bay advocates and concerned citizens are still waiting for the cavalry — EPA, that is — to arrive. As described in some detail in CPR’s recent report, the Bay states are, collectively, and individually, nowhere near where they should be at this point to meet either the TMDL’s 2017 interim pollution reduction targets or its 2025 final goals. And EPA has yet to sound the bugles – particularly with respect to enforcing the lack of progress on urban stormwater pollution.

A few months back, I wrote about a settlement negotiated by the Justice Department (DOJ) between EPA (Region 1) and the Rhode Island Department of Transportation over the failure to implement their “Phase I MS4” (large stormwater) permit under the Clean Water Act. This month saw another DOJ-led crackdown on a large MS4 permit holder outside of the Bay watershed, this time in Salt Lake County, Utah (the smaller Salt Lake City is located within the county). And this consent decree was even more aggressive than the Rhode Island one.

To start, DOJ is requiring Salt Lake County to maintain sufficient personnel to implement its permit and the consent decree. But unlike many permits, the consent decree actually specifies a number – no less than nine full time employees, one of which must be a managerial level employee – and deems it a violation of the settlement if the county does not immediately fill any vacancies. The county must also fully implement their current stormwater management plan by the end of April 2016 and submit an inventory of all modern stormwater control practices within six months of the date the consent decree is executed, as well as a plan to inspect and maintain each such facility. As I’ve noted before, allowing expensive stormwater control practices and facilities to go uninspected and unmaintained results in a massive waste of public investment and does little or no good for the environment. So the inclusion by DOJ of this small provision was very important for ensuring the permit produces results.

Further, to help ensure that the county gets the most bang for its buck from these investments, the settlement also requires the county to establish a webpage with a map of all such facilities to give the public an opportunity to increase monitoring and oversight of them. Another important provision requires the county to give semi-annual updates on their progress, including ongoing assessments of whether resources are sufficient to implement each stormwater management plan, all terms of their MS4 permit, and each condition of the consent decree. These reports must explain any deviation from the consent decree or failure to achieve any provision of the agreement and have to be signed by a city official certifying that (s)he personally supervised the preparation of the report and its characterization of the progress being made. Finally, and perhaps most importantly, the consent decree establishes a very detailed schedule of stipulated penalties, including escalating fines for subsequent violations tailored to each individual provision.

But that enforcement zeal seems to be absent when it comes to the Chesapeake Bay. It’s one thing for EPA to decline to get creative in exploring the outer reaches of its enforcement authority, but quite another to not even marshal the same enforcement resources within the watershed as it deploys elsewhere around the country.

For a number of years, EPA has been enhancing its focus on the problem of stormwater runoff pollution. More than a few reports, guidance documents, and other materials on EPA’s website discuss how to write a proper stormwater permit. And, while still rare, more new stormwater permits around the country are being drafted each year to include common sense requirements for greening the urban environment and protecting waterways in these areas. But states like Maryland prove that talking tough about stormwater and taking action are two very different things. Maryland has some of the most innovative and stringent MS4 permit provisions in the nation – but ones that go unenforced and, in many counties, unfunded. We should not have to wait for DOJ’s random traipse to take it here and fix our permits through a consent decree. We know what it takes to implement an effective stormwater permit and we have been promised by the President of the United States and the EPA Administrator that they would be watching like a hawk as the Bay jurisdictions implement the Bay TMDL.

Yet still we wait.