Retroactive Stormwater Permitting of Existing Development – Coming to a Parking Lot Near You?

Environmental Alert

On July 10, 2013, a consortium of environmental organizations filed a petition with the U.S. EPA, asking the Agency to make a determination under the Clean Water Act (CWA) that stormwater discharges from impervious surfaces (e.g., building rooftops, parking lots and roadways) at commercial, industrial and institutional sites should be required to obtain stormwater permits and conduct remedial actions on a retroactive basis. The petition (filed by American Rivers, Conservation Law Foundation and Natural Resources Defense Council) asks EPA to use its CWA "residual designation authority" (RDA) to require property owners in EPA Region 1 (New England), Region 3 (mid-Atlantic states), and Region 9 (California and the southwest) to capture and treat their stormwater runoff, which the NGOs allege is impairing waterbodies in many parts of the U.S.

Currently, unless such residual designation occurs, only new construction projects, industrial sites falling within certain limited categories, and municipal stormwater sewer systems are required to obtain stormwater permits and manage stormwater runoff. The NGOs allege that stormwater discharged from impervious surfaces on commercial, industrial, and institutional sites are significant sources of pollutants; specifically, metals (lead, copper and zinc), sediments, phosphorus, nitrogen, and oxygen-demanding compounds that cause water body impairments. 

In 2008, Conservation Law Foundation successfully petitioned EPA to use RDA to require stormwater discharge permits for existing impervious surfaces in the Long Creek watershed, which includes the Maine Mall area south of Portland, Maine. Property owners with an acre or more of impervious surface in the Long Creek watershed are now required to control their stormwater runoff either on an individual basis (by retrofitting their property to control pollutants in runoff) or by obtaining coverage under a general permit and paying an annual fee of about $3,000 per acre of impervious cover. The Long Creek Watershed Management District uses these funds to conduct various stormwater improvement projects in the watershed. A similar NGO petition has been granted by EPA Region I with regard to limited areas within the Charles River watershed in Milford, Bellingham, and Franklin, Massachusetts.

The current petition represents an effort to expand EPA stormwater runoff control regulation to large areas of the country. The petitioners recommend remedial actions such as conservation of natural areas, reducing hard surface cover and retrofitting urban areas with features that detain stormwater runoff and treat pollutants in stormwater.

EPA has 90 days to act on the petition, although this timeframe may be extended by agreement with the petitioners. Whether the NGOs will succeed in their efforts remains to be seen, but EPA has already identified pollutants in stormwater runoff as a high priority enforcement issue. Stay tuned.

For more information on this alert, contact Sharon G. Newman or any of our Environmental Practice Group attorneys.