This script is becoming familiar. EPA, working since late 2009 to develop a new national post-construction stormwater rule, approaches a deadline to release a draft of the rule proposal for public comment. But the deadline comes and goes, no proposal is released, and there is confusion as to whether any new deadline exists. This pattern continued most recently last month, when EPA missed the June 10 date for rule proposal, but provided no additional timetable for action going forward.
However, in a new turn of events, last month’s missed deadline did not pass without consequences. The Chesapeake Bay Foundation (CBF) declared EPA in breach of the 2008 settlement agreement in which the Agency agreed to develop said stormwater rule. This declaration triggered a 90-day dispute resolution period where the two sides will enter additional negotiations, suggesting that further clarity on the state of stormwater rule is unlikely before early Fall. Although the discussions of a new rulemaking schedule have been somewhat heated and emotional, based on what NACWA has heard from both sides involved, it is likely that a new timeline agreement will ultimately be reached.
NACWA has previously blogged in this space about the stormwater rule and our participation in the development process. And while the continued delays have frustrated the many interested parties following the rule, they also demonstrate just how complex – from a technical, economic, and policy standpoint – regulation of urban stormwater is at a national level. EPA has previously stated this is the most complex water rule it has ever undertaken, and has a dedicated team of staff members who have been working hard on the proposal over recent years. Even so, developing the rule has been much more complicated than anyone anticipated.
As clean water utilities working on the front lines of urban stormwater management every day, NACWA members are all too aware of the intricacies and challenges involved in managing this unique form of runoff. Urban stormwater is treated as a point source for regulatory purposes under the Clean Water Act through the municipal separate storm sewer system (MS4) permit program, even though it is more like a nonpoint source due do its diffuse nature. This makes controlling the runoff challenging and often ill-suited to traditional technology-based approaches for removing pollutants, like filtration.
In the absence of federal action, many states are moving ahead with their own stormwater regulations, such as Washington, DC’s recently released stormwater rule. Additionally, numerous communities and utilities are taking their own steps to manage stormwater through more innovative means such as green infrastructure (GI) and low-impact development (LID). GI and LID include practices like green roofs on buildings, vegetated bioswales in public right-of-ways, and pervious pavement, which when used in concert can retain and infiltrate stormwater, rather than flushing it into a receiving water body. Examples of these efforts can be seen across the country, and are being implemented without new federal rules or regulations, often with the support of both state regulators and the public.
It is critical that EPA’s eventual national stormwater rule does not hamper these ongoing efforts at the state and local level. Acknowledging that many interested stakeholders have been frustrated with what seems to be a haphazard approach to deadlines, we hope the parties involved in the current discussions over a revised schedule will ultimately agree on a new timeline that recognizes the complexity of the issues involved and the need to get these new stormwater regulations right.
While clean water utilities around the country are taking bold steps to address urban runoff, they are also keenly aware that true water quality improvement will not occur until other nonpoint sources – especially stormwater discharges from agriculture – are also brought under a more stringent regulatory regime. This is why NACWA was so disappointed to see that, at the same time CBF declared EPA in breach of the 2008 settlement agreement based on the municipal stormwater rule delay, the parties also quietly agreed to effectively eliminate another key aspect of the settlement that involved new national regulations for concentrated animal feeding operations (CAFOs).
The retreat on CAFOs shows a concerning willingness by EPA and some in the environmental activist community to tighten the screws on municipal dischargers without taking a similarly aggressive regulatory stance against agricultural dischargers. While NACWA appreciates a recent letter from over 200 environmental groups around the nation calling on President Obama and EPA to strengthen CAFO regulations, more concrete action is needed. NACWA members are more than willing to do their fair share in addressing water quality concerns, but true, sustained improvement in water quality will only be seen through a more holistic approach that acknowledges – and holds responsible – all sources of impairment.
The challenges of managing stormwater runoff are significant, but they are not insurmountable. NACWA and its utility members look forward to more productive engagement with EPA as the Agency advances development of the stormwater rule, with the goal of finding a regulatory path forward that can garner wide support. At the same time, NACWA hopes for additional conversations with EPA and the environmental activist community to promote efforts for water quality improvement that are more inclusive of all stakeholders and will achieve the clean water goals that we all share.