Becky Hammer, Project Attorney, Water Program, Washington, DC
Last week the Environmental Protection Agency (EPA) announced that it would not be granting a set of petitions which asked the Agency to control harmful polluted stormwater runoff that is degrading waterways in certain regions of the country. NRDC and the organizations we partnered with on these petitions are extremely disappointed by this response.
Stormwater runoff is an enormous problem across the United States and is the only growing source of water pollution in many areas. Much of this pollution comes from existing developed sites that were built with minimal or no controls to stop massive quantities of dirty runoff from flowing into our rivers, streams, and lakes. This pollution threatens people’s health, and it impacts our economy by causing beach closures and other lost recreation opportunities.
Fortunately, the Clean Water Act provides citizens with the opportunity to petition the EPA for what is known as “residual designation” of stormwater sources that are causing pollution problems. If granted, a “residual designation” petition would lead to requirements for problem-causing sites to take steps to reduce their pollution impacts. NRDC, American Rivers, the Conservation Law Foundation, and several regional watershed groups filed such petitions last summer with EPA Region 1 (New England), Region 3 (mid-Atlantic), and Region 9 (Southwest and California).
In responding to our petitions, EPA acknowledged that stormwater runoff from the categories of sites we identified—commercial, industrial, and institutional properties—contains the same pollutants that are fouling our waters.
For example, Region 1 stated: “the Region finds that there is a likelihood of pollutant exposure, and therefore presence in stormwater discharges from CII [commercial, industrial, and institutional] sites generally,” even going so far as to discuss specific waterways that are polluted by runoff from these sites. Region 3 said: “EPA accepts that many CII sites have significant amounts of impervious surface, which are exposed to a variety of pollutants that can discharge.” And Region 9 affirmed: “EPA agrees that it is reasonable to expect that the pollutants identified in the petition may be exposed to precipitation at CII sites with impervious cover.”
Yet the Agency decided to avoid taking any action to reduce polluted runoff for various reasons, none of which holds up to scrutiny.
For example, the Agency claims that current state and federal regulatory programs are “adequately” addressing stormwater pollution. We know that this simply isn’t true, as the same programs EPA cites have proven ineffective at stemming runoff pollution over the past several decades. That’s why our stormwater pollution problem is still growing. What’s more, existing requirements aren’t even being properly implemented or enforced, as EPA’s own documentation of permit violations shows.
Our petitions were adequately supported and provided the Agency with more than enough factual information to support our request. Yet EPA claimed that even more detail was needed, even though the law doesn’t require it. It’s clear that the Agency just doesn’t want to step up and do what’s necessary to clean up our waters.
Regions 3 and 9 denied our petitions outright, while Region 1 stated that it was neither granting nor denying but rather will perform additional investigations to determine whether it might exercise designation authority in the future. All three Regions’ responses discussed the possibility of future action, but only Region 1 seems to have any real interest in doing so—and even it failed to commit to any specific steps.
By deciding not to grant these petitions, not only is EPA backing away from an authority that it could use to solve major pollution problems across broad regions of the country, it’s also missing an opportunity to more fairly allocate the costs and responsibilities of cleaning up stormwater pollution. In giving a free pass to the developers and strip mall owners whose runoff contributes to making our waters unsafe for swimming and fishing, EPA is leaving municipalities holding the bag for cleaning up the mess.
That’s why the National Association of Clean Water Agencies, a group representing municipal wastewater utilities, sent a letter to EPA last month stating that it supported the concept of residual designation (while offering suggestions for how it should best be implemented) because it would ease the burden on struggling municipalities and place more responsibility for managing runoff on the large property owners who are responsible for creating it.
Small businesses involved in the design, manufacture, installation, and maintenance of stormwater management practices also supported our petitions. Nearly seventy different businesses sent a joint letter to EPA last fall that stated: “We also support the recent initiative insisting that EPA require certain stormwater sources in polluted watersheds to obtain pollution-limiting permits. These petitions present an important opportunity to reduce the currently uncontrolled, permanent discharges from already built areas in our communities, discharges which if left unabated will continue to undermine environmental health and economic prosperity.”
EPA’s response is a disappointing lack of leadership on a problem that the Agency claims is one of its top priorities. That claim is ringing ever more hollow, as EPA’s national stormwater rulemaking continues to languish as well.
It’s clear that EPA must do a lot more to protect our waters from pollution, and we will continue to press the Agency for solutions. These petition denials are not the end of the line. We will hold the Agency to its word that it will use its authority as needed in the future. In the meantime, absent EPA taking responsibility, we will continue to work with watershed groups, city leaders, and businesses to help them address the pollution that is burdening our communities.
Photo Credit: EPA and Runoff Pollution/shutterstock