Last week brought big news in the water quality world. On July 10, American Rivers, the Conservation Law Foundation, the Natural Resources Defense Council, and several other environmental groups filed “residual designation authority” petitions for stormwater discharges across EPA Regions 1 (New England), 3 (mid-Atlantic), and 9 (southwestern states and California). That may sound like an obscure and technical act, but here’s why it’s actually a very big deal.
For years, urban stormwater runoff has been one of the United States’ greatest unsolved water quality challenges. Urban runoff is second only to agricultural runoff as a source of water quality impairment, and on a per-acre basis, urban development is generally more damaging to water quality than agricultural use. But EPA has struggled to regulate urban stormwater runoff. For years, EPA barely regulated urban stormwater runoff at all. The 1987 Clean Water Act amendments compelled EPA to act, but even today, many point sources of urban stormwater runoff escape coverage under the National Pollutant Discharge Elimination System. The gaps are particularly salient for areas that are highly developed but lightly populated (shopping malls, for example). These areas generate a lot of polluted runoff, but they generally aren’t industrial and therefore escape coverage under the industrial program. They also often lack sufficient population to be included in the municipal permitting program (which covers census tracts based on their population density). Those gaps—and the weak coverage of the many sources that are subject to permitting—have real costs. Water quality impairment now is a pervasive feature of our urban and suburban landscapes.
Several years ago, the Conservation Law Foundation (one of the organizations that filed yesterday’s petitions) discovered a potential legal remedy for this issue. Buried in the depths of Clean Water Act section 402 is a provision requiring EPA (or a state with delegated permitting authority) to require permits for any stormwater discharge that EPA or the state administrator determines “contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States.” For years, no one had paid any attention to that provision; one industry lawyer later referred to it as “the sleeping giant.” But CLF filed RDA petitions in Vermont, Massachusetts, and Maine. Each petition led to major expansions—albeit over relatively small geographic areas—in the scope of Clean Water Act permitting coverage.
A few images illustrate the impact of the change. The three images below show the Long Creek watershed in Maine.
This first image at the top shows the extent of permit coverage under EPA’s municipal program. As you can see, most of the watershed is not included, despite a high level of commercial development.
This second image shows the extent of permitting coverage under the industrial program. In combination, these two images show the geographic extent of permit coverage as of 2009.
This third image shows the extent of Clean Water Act permitting coverage after EPA granted CLF’s petition (since the figure was created, the extent of permit coverage has expanded slightly). For the Long Creek watershed, this was a transformative regulatory change.
And that’s what makes yesterday’s filing so important. The environmental groups aren’t just asking for this regulatory change in a few small, test-case watersheds. They’re asking for the change across huge swaths of the country. In terms of the potential scale of impact, the closest recent analogy is theDecker v. Northwest Environmental Defense Center case, which seemed poised—until the Supreme Court granted cert and then reversed the Ninth Circuit—to expand Clean Water Act permitting requirements across much of the forestry sector. I’d argue that these petitions call for an even more ambitious effort, and that they probably address an even larger water quality problem.
There’s much more that could be said about these petitions, but I’ll stop there for now. Readers interested in learning more about these issues might be interested in the articles here and here, both of which discuss Long Creek and RDA in more depth. The website of the Long Creek Restoration Project, which documents some of the innovative work that continues to take place in that watershed, is here. And for an older post explaining why urban stormwater issues are more important and interesting than most environmental lawyers realize, see here. And stay tuned. This is an issue worth following.
This blog is cross-posted on the Environmental Law Professors Blog.
Showing 2,817 results
Dave Owen | July 16, 2013
Last week brought big news in the water quality world. On July 10, American Rivers, the Conservation Law Foundation, the Natural Resources Defense Council, and several other environmental groups filed “residual designation authority” petitions for stormwater discharges across EPA Regions 1 (New England), 3 (mid-Atlantic), and 9 (southwestern states and California). That may sound like an obscure and technical […]
Erin Kesler | July 10, 2013
This morning, the House Energy and Commerce Subcommittee is expected to advance the “Energy Consumer Relief Act” for consideration. The Act would allow the head of the Department of Energy to veto any rules promulgated by the EPA with estimated “costs” of over $1 billion. Center for Progressive Reform President Rena Steinzor testified against the […]
James Goodwin | July 9, 2013
“April showers bring May flowers.” To that well-known spring-related proverb one might soon add “the Spring Regulatory Agenda brings new groundless complaints from corporate interests and their anti-regulatory allies in Congress about so-called regulatory overreach.” Last Wednesday, the Obama Administration issued the 2013 edition of the Spring Regulatory Agenda, one of two documents the President must issue […]
James Goodwin | July 3, 2013
Welcome aboard, Administrator Shelanski. You’re already well into your first week on the job as the head of the White House Office of Information and Regulatory Affairs (OIRA). You’ve already received plenty of valuable advice—during your confirmation hearing and from the pages of this blog, among other places—on how you can transform OIRA’s role in […]
Thomas McGarity | July 2, 2013
Lost among the high-profile opinions that the Supreme Court issued during the past two weeks was a case that attracted little media attention, but is of great importance to the millions of Americans who take generic drugs. Karen Bartlett, a secretary for an insurance company filed the lawsuit against generic drug manufacturer Mutual Pharmaceutical Company. […]
Matthew Freeman | June 28, 2013
CPR Member Scholar John Echeverria has an op-ed in Wednesday’s New York Times on the Supreme Court’s end-of-term decision in a land-use case, Koontz v. St. Johns River Water Management District. Although the case has been somewhat overlooked amidst the Court’s evisceration of the Voting Rights Act, and its landmark decisions on same-sex marriage, it has […]
Erin Kesler | June 28, 2013
Last night, the Senate confirmed Howard Shelanski as Administrator of the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget. As we’ve written about before, the confirmation of Shelanski as head of OIRA comes at a criticial juncture. OIRA is tasked with reviewing rules proposed by federal agencies. Presently, of the 139 […]
Erin Kesler | June 27, 2013
Yesterday, The Hill published an opinion piece by Center for Progressive Reform President Rena Steinzor. The piece, entitled, “Toxic chemical bill trumps state rights” can be read here. Steinzor writes: We read with dismay… the drastic provisions of legislation authored by Sens. David Vitter (R-La.) and the late Frank Lautenberg (D-N.J.) deceptively entitled the Chemical […]
Lisa Heinzerling | June 25, 2013
At a speech this afternoon at Georgetown University, President Obama outlined a series of aggressive steps aimed at curbing greenhouse gas emissions and preparing the nation to adapt to the now unavoidable effects of climate change. Center for Progressive Reform Member Scholar Lisa Heinzerling issued the following reaction: The President’s speech offered exactly what many […]