EPA Stormwater Ruling: How Will It Impact Utilities?

By Laura Martin

A little-known provision within the Clean Water Act (CWA) could soon have a very big impact on how stormwater is regulated.  

A group made up of several environmental organizations has filed petitions in EPA Regions 1, 3, and 9, asking the government agency to enforce a previously ignored CWA provision known as residual designation authority (RDA). The provision states that the EPA, or a state with delegated permitting authority, can require permits for any stormwater discharge that is determined to “contribute to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States.” 

If accepted, RDA would require privately owned industrial, commercial, and institutional sites in New England, the Mid-Atlantic, California, and areas of the Southwest to limit their impervious surfaces and reduce stormwater runoff to meet specific permit requirements. The rule will apply to both new properties and existing properties currently impacting stormwater discharge. This could mean that some existing properties must make stormwater reduction updates like redirecting flow or installing green infrastructure.

Petitioner and attorney Jon Devine feels enforcing RDA will take the burden of stormwater management off of public utilities.

"Cities around the country are already required to reduce the amount of stormwater runoff going into their various systems. As things stand today, public utilities are largely on the hook themselves to deal with that stormwater, rather than the sites within their territories,” said Devine, who works with the Natural Resources Defense Council (NRDC), which along with the Conservation Law Foundation (CLF) and American Rivers spearheaded the petitions. “It is the private property owners that have created this stormwater runoff by paving over some portion of their property for a parking lot or by constructing the wrong type of building, and they should be the ones to handle the problem."

But others feel that RDA’s impact on the municipal community is still unknown.   Seth Brown, a stormwater program and policy director for the Water Environment Federation (WEF), is concerned that the responsibility to determine who is subject to RDA permits, what they require, and how they apply could fall on the utilities themselves.  Currently, the exact implications of RDA are undetermined and will depend largely on how the EPA decides to apply the rule.

"It is such an open type of provision that the municipal community may not know the exact impacts of it,” said Brown. "The municipal community may have concerns that this may be another program to administer. On the other hand, states may be worried about this because it could add a whole other level of cost for them if administered at the state level."

While the details of how the permit program would work are yet to be determined, Devine said RDA supporters want enforcement responsibilities to be managed directly by the EPA or state agencies. The petitions are working to communicate this wish with the EPA as well as with municipalities.

"Municipalities already have significant obligations under the law to comply with, so we would not want to add on top the need to manage this program,” he said. “I would be surprised if that is how it plays out."

Around 1,300 U.S. communities already have some sort of stormwater utility fee required for private properties that generate stormwater runoff above what would normally occur if the site had not been developed. It is currently unclear how RDA permits will impact communities that have these existing fees, said Brown.

"Property owners already paying a stormwater utility fee may question the requirement to pay for a permit as well,” said Brown. “However, maybe RDA is the way to go in areas where it is difficult to form stormwater utilities. Politically, it can be challenging to get a stormwater utility in place, but if the EPA exercises RDA it may force the issue of tying impacts to costs more directly."

Devine believes that if RDA permits are put in place, any kind of current stormwater utility fee would be integrated into it. The changes in stormwater management the permits would require should reduce the amount of runoff, thus lowering the fees private properties have to pay to stormwater utilities, he said.

"A municipality with any kind of stormwater performance standard for private properties would be well on its way or ahead of anything that would be required ahead of a permit,” said Devine.

There are still many details regarding how RDA will apply that will need to be determined by the EPA and other organizations if they approve the petitions. The next few months could determine how different sectors feel about the possibility.

"The public sector needs to get more information, said Brown.  “If the issue is better understood, and the municipal community sees benefits of RDA, they may support it."

Regardless of how RDA plays out, both Brown and Devine agree that tackling stormwater is a must.  There are currently 108 million acres of developed land in the United States, according to the U.S. Department of Agriculture’s Natural Resource Conservation Service. The EPA predicts there will be between 800,000 and 1 million acres of land developed each year for the next 25 to 30 years. That change in landscape will only continue to create stormwater problems.

"It can seem benign because we are just talking about rain here, but the fact of the matter is when rain comes in contact with the hard surfaces around any urban and suburban areas, it gets mixed with metals, petroleum products, sediment, and literally garbage as well. That is washed, in most cases, into sewers and goes directly to nearby water ways without treatment," said Devine. "Excess stormwater can also wreak havoc directly on smaller rivers and streams that can't handle that much water."

From a utility perspective, stormwater is also a major issue, causing severe overflows and backups.  They are particularly problematic for combined sewer systems, which are used in approximately 772 cities in the U.S., according to the EPA. These systems are designed to overflow if they exceed capacity during periods of heavy rainfall or snow melt, something that is happening more often due to increased urbanization. When the systems overflow, excess wastewater is discharged directly into streams, rivers, and lakes. These combined sewer overflows (CSOs) contain untreated human and industrial waste, toxic materials, and debris.

Non-combined systems can also experience overflows of raw sewage due to rain, which are known as sanitary sewer overflows (SSOs). The EPA holds utilities accountable for both types of overflows.

“To prevent this from happening, we need green infrastructure to get this stormwater into the ground and out of the pipes,” said Brown.

Will RDA be the solution? Currently, the petitioners are waiting on a decision from the EPA, which they expect will happen in the next few months. It is time for the EPA to make a change, said Devine.

"The EPA for many years has been promising to reform the national rules regarding stormwater pollution and has unfortunately failed to do so,” he said. “Stormwater is a significant culprit.”