Environmental

Stormwater

Publications
July 22, 2013

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.

Firm Highlights

News

Preti Flaherty Attorney Benjamin S. Piper Promoted to Partner

Preti Flaherty is pleased to announce that the firm’s partnership has named attorney Benjamin S. Piper as a partner. Ben is a member of the firm's Environmental, Litigation, and Media Law Practice Groups and works...

Press Coverage

Maine State Police May Be Spying on You

Police and governments are increasingly turning to new tracking and monitoring methods in their efforts to prevent and record evidence of crimes. A Portland Press Herald investigation examines these expanding law enforcement abilities and the...

Event

2020 Employment Breakfast Series: Strengthening Your Company's Management of Accommodation Requests

For more than 25 years, Preti Flaherty's Employment Law Group has been keeping clients, business partners, and friends up to date on recent developments in employment law. Join us as we continue that tradition...

Press Coverage

Bangor superintendent blocked BDN reporter on Twitter after critical news coverage

In an apparent violation of the First Amendment, Bangor schools superintendent Betsy Webb temporarily blocked a journalist on Twitter following a report that news of a student suicide was announced over the loudspeaker at...

Publication

Litigation and Arbitration Venue Provisions in Construction Contracts: When and How They Work

Venue and choice-of-law provisions are fairly standard in construction contacts, but can be overlooked due to their location within a contract. When drafted effectively, these provisions can help limit uncertainty about where and how...

Event

2020 Cannabis Law Breakfast - Winter Update

News

Preti Flaherty Welcomes Government Relations Liaison Andrew I. Roth-Wells to the Firm

Preti Flaherty is pleased to announce that Andrew I. Roth-Wells has joined the firm as a Government Relations Liaison. Andrew will help manage legislative and regulatory advocacy efforts for the firm’s Government Affairs Team...

Publication

WC Alert: Recent Developments from Maine's Workers' Compensation Board

Frank A. Graf, MD, Reappointed to Approved List of § 312 Examiners At the February 11 meeting of the Maine Workers’ Compensation Board, Frank Graf, MD, was reappointed to the list of approved § 312...

Publication

The Potential of the Blockchain for Asset Protection Planning

While many legal scholars focus on the challenges and complications seemingly inherent to blockchain and cryptocurrency, others look past the fear and see potential. In this article for Cumberland Law Review , Ian Huyett and Brian Quirk...

Event

2020 Employment Law Series: A Legislative Update for HR Professionals

For more than 25 years, Preti Flaherty's Employment Law Group has been keeping clients, business partners, and friends up to date on recent developments in employment law. Join us as we continue that tradition...