On July 10, 2013, a group of environmental organizations
(including American Rivers, Conservation Law Foundation (CLF) and
Natural Resources Defense Council) petitioned the US Environmental
Protection Agency (EPA) to impose sweeping stormwater permit
requirements on commercial, industrial and institutional sites in
EPA Region 1 (New England), 3 (Mid-Atlantic) and 9 (Pacific
Southwest).
The petitions assert that EPA must exercise its "Residual
Designation Authority" (RDA) under Section 402 of the Clean
Water Act, which establishes the National Pollutant Discharge
Elimination System (NPDES), because the sites are contributing to
violations of water quality standards.
The environmental groups brought their petitions under 40 CFR
122.26(f)(2), which states that "any person may petition
[EPA] to require a NPDES permit for a discharge which is composed
entirely of storm water which contributes to a violation of a water
quality standard or is a significant contributor of pollutants to
waters of the United States."
CLF has had varying success in the past prompting agencies to
act based on RDA. A 2003 petition was initially denied by the
Vermont Agency of Natural Resources (the state NPDES permitting
authority), but after that decision was overruled by the courts,
more than 80 "designated discharges" to five Vermont
"brooks" became subject to permitting requirements. In
2008, CLF asked EPA Region 1 to designate certain stormwater
discharges into Long Creek, near Portland, Maine, as requiring
NPDES permits. EPA granted CLF's petition, leading to the
issuance of a general permit regulating over 100 properties with
more than one acre of impervious area. And in 2009, CLF petitioned
EPA Region 1 to require permit coverage for all private commercial,
industrial, institutional and high‐density residential
properties with large impervious areas in the upper Charles River
watershed in Massachusetts. EPA eventually issued a draft general
permit, but after receiving numerous public comments highlighting
the high cost of compliance, EPA appears to have put that permit on
hold.
Who Could Be Affected
Last week's petitions are much broader than CLF's past
efforts. The environmental groups now are asking EPA to regulate
all non-de minimis point source stormwater discharges from
commercial, industrial and institutional sites that are not
currently subject to Clean Water Act permitting requirements and
are within impaired watersheds in EPA Region 1, 3 and 9. Such sites
may include:
-
malls, shopping centers, strip commercial areas, neighborhood
stores, office buildings, hotels, gas stations, restaurants,
parking lots and garages, mixed use developments, and other
businesses, including associated yards and parking areas;
-
buildings, equipment, and parking areas associated with light or
heavy industry; and
- schools, colleges, hospitals, museums, prisons, town halls or court houses, police and fire stations, including parking lots, dormitories and university housing.
The petitions claim that an "extensive dataset" shows
that these sites have large pollutant concentrations and loadings,
causing thousands of water bodies to be impaired.
Next Steps
EPA has 90 days (i.e., until October 8, 2013) to grant or deny the
petitions. Interested parties should consider whether to submit
comments to EPA supporting or opposing the petitions. If EPA grants
the petitions, it likely would initiate a permitting process that
would involve opportunities for public comment. Denial of the
petitions likely would be considered to be a "final agency
action," subject to judicial review.
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