Obama’s Path to Progress: Protecting our Nation’s Lakes and Streams from Pollutant-Laden Stormwater Runoff

This week and next, CPR is using this space to highlight several key regulatory safeguards meant to ensure that the nation’s rivers, lakes, and streams are protected from damaging pollution—rules that are currently under development by the Environmental Protection Agency (EPA) and included in our recent Issue Alert, Barack Obama’s Path to Progress in 2015-16: Thirteen Essential Regulatory Actions. Today’s post will highlight the pressing need to rein in stormwater pollution, while also examining some of the challenges the EPA must overcome as it drafts the rules by focusing on Maryland’s experience regulating the pollution source.

As rainwater flows over streets, parking lots, and rooftops and other impervious surfaces, it picks up a potent cocktail of pollutants that includes oil and grease from parking lots, pesticides and herbicides from lawns, and everything in between. This polluted stormwater makes its way through gutters and storm drains to the nearest stream, where it damages water quality and aquatic life. The more development that occurs, the more impervious surfaces are created, and the more stormwater pollution is produced. According to the EPA, a typical city block generates more than five times more runoff than a forested area of the same size.

Under the terms of a settle agreement arising out of a lawsuit brought by the Chesapeake Bay Foundation, the EPA was required to issue new restrictions on stormwater pollution. But the EPA has missed a series of deadlines, and is now more than three years behind schedule, with time ticking down on the Obama Administration.

While the EPA’s regulation would cover the entire country, Maryland’s attempt to rein in stormwater pollution offers a telling example of the competing incentives underlying stormwater regulation and can provide the EPA with a case study on what works and what doesn’t when dealing with stormwater.

The environmental reasons for Maryland to deal with stormwater are strong. The state has made a commitment to restoring the health of the Chesapeake Bay. Stormwater contributes 16 percent of nitrogen loads and 16 percent of phosphorus loads to the Bay, and this contribution will only grow as Maryland develops more. In fact, stormwater is the only source of pollution to the Chesapeake Bay that is still growing. The economic incentives are also huge. The Chesapeake Bay Foundation (CBF) recently calculated that a restored Bay would be worth $4.6 billion annually to the state, and you can’t restore the Bay without dealing with stormwater.

Maryland did take measures to tackle the problem. In 2012, the General Assembly passed a bill requiring the ten largest and most urbanized areas to impose impervious surface fees. The revenue raised is used for cleanup programs and creates a financial incentive for companies to redevelop old lots instead of building on green spaces and to replace existing impervious surfaces with more permeable alternatives.

Reasonable an approach though that was, not everyone was on board. Opponents dubbed it the “rain tax,” and made it so politically controversial that some have gone so far as to blame it for the November defeat of the Democratic gubernatorial candidate in heavily blue Maryland. While Republican Governor-elect Larry Hogan likely can’t hang his hat on the rain tax alone, he made its repeal a central theme in his campaign, even distributing umbrellas sporting the catchy slogan: Who’ll stop the rain (tax)? Hogan/Rutherford.”

As Maryland’s experience reveals, promulgating a meaningful national stormwater rule will be politically challenging. The Administration needs to get ahead of the rule’s opponents by trumpeting the rule’s benefits, drowning out false tropes such as the “rain tax.” The truth is that today’s national stormwater pollution controls and management approaches are woefully inadequate to deal with the problem. As discussed further in our recent Issue Alert, the scope of the rule must be broadened and it must establish clear requirements for controlling post-construction runoff—requiring all buildings to retain a certain amount of stormwater on site, for example. These new requirements should apply to newly developed and redeveloped sites, as well as to old developments. 

While challenging, promulgating a rule is not only possible, it’s also critical. Yet the agency appears to be folding in the face of these challenges. After the EPA missed no fewer than six deadline extensions for the rule, CBF finally declared the EPA in breach of the settlement and is deciding whether to go back to court to enforce the provisions. Without a rule that effectively limits stormwater pollution, the nation will continue to offset the gains that other sectors are making to reduce pollution, making clean streams, rivers, and lakes an impossibility. The Obama Administration should work quickly to direct the EPA to introduce an effective rule that addresses the growing impacts of stormwater pollution.