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EPA Sued to Act on Stormwater

Monday, January 12, 2015

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Seeking again to force Uncle Sam's hand, environmental groups are demanding a court-ordered deadline for federal rules to control runoff from construction projects and developments.

In a move likely to impact all construction sectors, the Natural Resources Defense Council (NRDC) and Environmental Defense Center have filed suit to enforce a 2003 court order that requires the U.S. Environmental Protection Agency to strengthen regulations preventing pollution from stormwater runoff.

The EPA's “foot-dragging” on the issue is “inexcusable,” the plaintiffs say.

waterway
© iStock.com / ferrerivideo

Stormwater is one of the nation's most widespread forms of water pollution.

Stormwater is one of the nation’s most widespread forms of water pollution. Runoff from developed sites and construction projects dumps a significant amount of pollutants into the wetlands, streams and rivers.

The groups filed the lawsuit Dec. 18 in the U.S. Court of Appeals for the Ninth Circuit in San Francisco.

10-Year-Old Order

A federal appeals court ordered the EPA more than a decade ago to redo portions of its 1999 stormwater regulations dealing with urban runoff because they were not aligned with the Clean Water Act, the environmental groups said in announcing the suit.

That order also directed the agency to consider regulating runoff from unpaved forest roads.

That ruling resulted from a successful challenge brought by EDC and NRDC.

In the latest suit, the groups are asking the court to impose strict deadlines for EPA to issue those updates. Specifically, the plaintiffs want the court to order EPA to:

  • Issue new rules on urban stormwater permits within one year;
  • Make a formal determination within six months on whether regulation of forest road runoff is necessary; and
  • If the agency finds forest road regulations necessary, issue such rules within two years after that.

EPA Responds

In response to the lawsuit, the EPA acknowledged a "serious threat" from runoff but said it preferred to educate, not regulate, to address the problem.

construction site
©iStock.com / hxdyl

In urban areas, stormwater “picks up contaminants, including suspended metals, algae-promoting nutrients, used motor oil, raw sewage, pesticides, and trash,” that flows untreated through municipal sewer pipes directly into streams, lakes and the ocean, according to the suit.

The agency said its "goal is to build a broad nationwide constituency for better stormwater pollution control by educating communities and giving them an opportunity to develop strong programs before creating additional federal regulatory requirements."

The EPA noted that it promoted programs incorporating green infrastructure, such as roof gardens and permeable pavements.

These technologies allow more rainfall to soak directly into the ground and sharply limit runoff volume, according to the NRDC and EDC.

Stormwater Contamination

As it flows across roads and other hard surfaces, rainwater can pick up pollutants like sediment, debris, chemicals and transport these to nearby sewage systems and waterways.

Such runoff is the main cause of beach closings and is responsible for fouling tens of thousands of miles of streams and hundreds of thousands of acres of lakes, ponds, and reservoirs, the NRDC and EDC said.

Additionally, sediment-laden runoff from forest roads threatens drinking-water supplies and kills fish and other aquatic life, the groups noted.

Abandoned Plans

Thus, the wait-and-see approach is not working, the plaintiffs say.

roof garden
©iStock.com / donkeyru

Green infrastructure, such as rooftop gardens and permeable pavements, is gaining support.

“This inexcusable delay in obeying a clear court order is, unfortunately, all too typical of EPA foot-dragging on the crucial stormwater pollution problem,” said NRDC senior attorney Larry Levine.

“The agency has repeatedly promised a much-needed update of all its stormwater protections, and repeatedly failed to come through.”

The agency pledged to begin updating the standards in 2009 but recently abandoned the effort, according to the groups.

EPA’s "educational" approach was applauded the National Association of Home Builders in March 2014. In its news blog, NAHB called the approach a “major win for the home building industry,” as new rules would have been “onerous, costly, and in many cases impractical.”

Levine said, "We hope this suit spurs EPA to get back into the business of modernizing its whole stormwater program, which badly needs updating and could greatly benefit from new green technologies."

Déjà Vu All Over Again

The stormwater dispute is playing out much like the EPA's long-delayed rule regulating Coal Combustion Residuals.

In that case, after years and years of discussion, EPA announced in June 2010 that it would soon decide whether to begin regulating coal slag and other CCRs as hazardous waste.

"Soon" became years, however, with no decision in sight.

Ultimately, the delays and resulting uncertainty engulfing so many industries eventually united the disparate groups in anger at EPA for kicking over a high-stakes hornet's nest that it seemed uninterested in resolving.

It took lawsuits from multiple stakeholders in the issue before EPA finally released a relatively modest decision late on Dec. 19—the tail end of a court-ordered deadline.

   

Tagged categories: Concrete; Construction; Developers; Environmental Control; Environmental Controls; Environmental Protection; Environmental Protection Agency (EPA); Government; North America; Regulations

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