Here in the Chesapeake Bay watershed, polluted runoff from impervious surfaces, such as roofs, driveways, parking lots, and a vast network of roads, is a huge problem. In fact, while pollution from wastewater treatment plants has decreased significantly since EPA established the Chesapeake Bay Total Maximum Daily Load (TMDL) several years ago, and while overall agricultural pollution has even decreased slightly during that same general period, nitrogen pollution from stormwater has actually increased since 2009. The lack of progress in reducing stormwater pollution stems in part from the failure of state environmental agencies and Region 3 of the Environmental Protection Agency (EPA) to properly enforce the provisions of existing municipal separate storm sewer system (MS4) permits. However, this month the U.S. Department of Justice along with EPA Region 1 concluded an enforcement action against the Rhode Island Department of Transportation for violations of its stormwater permits. Let’s hope Region 3 and Maryland were paying attention. 
As the owner of many miles of impervious roadways, the Rhode Island Department of Transportation (DOT) has long been subject to a Municipal Separate Storm Sewer System (MS4) permit written by the state’s Department of Environmental Management. Back in 2003, the DOT was first granted the authority to discharge pollutants in accordance with, but subject to, the conditions and limitations of the permit. Unfortunately, DOT submitted a deficient stormwater management program plan in 2005 and, after being notified of the deficiencies, failed to correct the plan or to even respond to the state’s environmental regulators. That pretty much sums up the level of effort that the Rhode Island DOT put into managing pollutants running off of its highways. As the current DOT director admitted in a statement last week after the case was settled, the DOT doesn’t even know where all of the different highway storm drains are located.
Sadly, the situation in Rhode Island is neither unique nor rare. Even in Maryland, which is operating under the focused and coordinated restoration efforts of the Bay TMDL, and which has required substantial funding to support both local and state MS4 permit implementation, the state has yet to crack down on MS4 permittees. Maryland “Phase I” municipal MS4 permit holders – the nine largest counties and Baltimore City – are now on their “third generation” permits, and the State Highway Administration is about to receive its own third generation permit. In each successive permit generation, the conditions and limitations within the permits have been more stringent. For example, the second generation permits generally required municipal permit holders to treat 10 percent of impervious surfaces through the use of green infrastructure or other best management practices, while the current permit requires municipal governments to treat an additional 20 percent of such surfaces. But most permittees have not even taken care of that initial 10 percent. And rather than enforce the previous permit, the Maryland Department of the Environment simply reissued a new one. It doesn’t do much good to write a permit in the absence of plans to enforce it.
That’s where the Rhode Island case comes in. With luck, the enforcement action brought by EPA and the Justice Department against the state DOT will make clear to MS4 holders in this region — most significantly, state and local governments — that they are paying attention to the issue of stormwater pollution and noncompliance with permits. The settlement agreed to between federal authorities and Rhode Island require the DOT to pay a modest penalty for the blatant disregard of its Clean Water Act obligations under the MS4 permit, set aside environmentally sensitive land for preservation, and – most importantly – establish a long-term funding plan to ensure that the DOT can actually live up to the terms of its permit.
Although the Bay TMDL is an “adaptive management” framework in which initial shortcomings may be met with small tweaks, and subsequent failures are to be met with incrementally greater responses, the total failure of the seven Bay jurisdictions to reduce nitrogen pollution from the urban sector after five years should warrant a similarly firm stance from both EPA and the DOJ. EPA Region 3 should make clear its view that it is unacceptable to allow continual and substantial noncompliance with MS4 permits by counties and state highway authorities. The action taken last week provides a good example of how a little federal oversight can propel state and local entities to comply with the permits that are essential to meeting the urban sector requirements of the Bay TMDL.
Unfortunately, history illustrates that EPA cannot be relied on to stay on top of the many MS4 permit holders within the Chesapeake Bay watershed or elsewhere. Federal enforcement actions against MS4 permits are exceedingly rare and – aside from the specific issue of sewage overflows into combined storm and sewer systems – are not a primary concern of EPA included among its National Enforcement Initiatives. Nevertheless, even a single enforcement action against any noncompliant MS4 permit holder anywhere in watershed would send a strong message to all states and municipalities and could be a huge shot in the arm for Bay restoration efforts.
