EPA Signals A More Aggressive Effort To Control Certain Pollutants In Water Discharges

Friday, November 4, 2011 - 07:17

EPA is becoming more assertive in using National Pollutant Discharge Elimination System (“NPDES”) permits to control certain discharges to troubled bodies of water, including stormwater discharges to those waters.[1] On October 5, 2011, EPA renewed the NPDES permit for point source discharges from the District of Columbia’s Municipal Storm Sewer System (“MS4”) and required significant new restrictions designed to reduce stormwater runoff. A year earlier, EPA had mandated a 45 percent reduction in nitrogen contained in wastewater discharges from the District’s Blue Plains municipal sewage treatment facility by 2015 as a condition for renewal of that facility’s NPDES permit.[2] The new restrictions appear to be motivated by EPA’s “pollution diet” for the Chesapeake Bay watershed. If EPA exports this strategy to other watersheds, states will have to figure out a way to comply, and they could look to the District’s latest NPDES permit as a model for reducing stormwater runoff.

Discharges Affecting The Chesapeake Bay Watershed

In 2009, President Obama signed an executive order directing EPA to lead the effort to restore the Chesapeake Bay.[3] To ameliorate nutrient pollution from nitrogen, phosphorous, and sediment in the Chesapeake Bay, EPA instituted a “pollution diet” for the Chesapeake Bay watershed last December.[4] The pollution diet is a comprehensive set of total maximum daily load (“TMDL”) restrictions. The Clean Water Act allows states and EPA to establish such TMDLs.[5]

The pollution diet establishes limits on discharges of nitrogen, phosphorous and sediment over a 64,000-square-mile area, affecting the pollution control policies of six states: Delaware, Maryland, New York, Pennsylvania, Virginia, and West Virginia, along with the District of Columbia.[6] These states and the District must comply with the pollution limits in the TMDL or face federal penalties. It is the largest area EPA has ever subjected to a TMDL.

The restrictions in the District’s five-year NPDES permit for stormwater discharges from the MS4 into the Potomac and Anacostia rivers will help the District achieve the nutrient limits established in EPA’s TMDL. The permit took effect October 7, 2011.[7] The new requirements are designed to reduce stormwater runoff, which in turn will lower the quantity of nitrogen, phosphorous and sediment deposited in the Potomac and Anacostia rivers. These requirements include installing at least 350,000 square feet of green roofs on District properties within the five-year period, achieving a 4,150 “minimum net annual tree planting rate” within the District, and requiring new developments “greater than or equal to 5,000 square feet” to retain 1.2 inches of stormwater on-site over a 24-hour storm.[8] The District will have 18 months to implement these changes.[9] Additionally, the District must prevent 103,188 pounds of garbage per year from flowing into the Anacostia River by 2016.[10] EPA has stated that it believes these measures are “necessary to ultimately achieve the specified reductions” in the Chesapeake Bay TMDL.[11]

Efforts To Expand Use Of The Pollution Diets Approach

Some in Congress have tried to strengthen EPA’s ability to regulate the Chesapeake Bay and other significant water bodies suffering from nutrient pollution.[12] In 2009, Senate Democrats, led by Ben Cardin (D-MD), introduced a bill as a “legislative backstop” to the Chesapeake Bay cleanup strategy announced in President Obama’s executive order.[13] Sen. Cardin also introduced bills aimed at restoring the Gulf of Mexico, Columbia River, San Francisco Bay, Great Lakes, Puget Sound, and Long Island Sound watersheds.[14] The bills stalled due to opposition from farmers and Senate Republicans. 

Those Congressional efforts to reduce nutrient pollutants are expected to resume. Waters outside the Chesapeake Bay watershed may soon be subjected to similar pollution diets if they succeed. Sen. Cardin is planning on reintroducing the Chesapeake Bay bill, along with some of the bills targeting restoration of other watersheds.[15] Sen. James Inhofe (R-OK) and other Republicans have indicated they will insist on language in the Chesapeake Bay bill that would prevent EPA from exporting its Chesapeake Bay pollution diet to other watersheds, such as the Mississippi River and the Gulf of Mexico.[16]

Even if EPA does not receive authority to expand its efforts to impose tighter requirements on other waters, states have the authority to implement their own comprehensive pollution diets.[17]  For example, California and Nevada recently agreed to a TMDL for Lake Tahoe that emphasizes reductions in urban stormwater runoff to lower the amount of nutrients and sediment entering the lake.[18] Although the New Jersey Legislature passed legislation to compel the state Department of Environmental Protection to establish a TMDL for nitrogen and phosphorous flowing into the Barnegat Bay within two years, Governor Christie vetoed the bill because the two-year time limit was not feasible.[19] However, EPA has announced its support for New Jersey’s development of a TMDL for Barnegat Bay within the next three years.[20] The New Jersey Legislature recently enacted one potentially significant measure to protect water quality from nutrient pollution, the 2011 New Jersey Fertilizer Law.[21] Other states have also proposed TMDL restrictions to address nutrient pollution.[22]

A Sign Of Things To Come?

For now, EPA’s comprehensive pollution diet extends only to the Chesapeake Bay, and the new restrictions in the District’s two NPDES permits will only affect the District. If federal efforts to set pollution diets for other major water bodies are authorized, EPA may follow similar approaches in those watersheds. Even if federal authority is not expanded, EPA’s actions in the Chesapeake Bay watershed could serve as an example to states seeking to effect similar reductions in stormwater discharges and their potentially harmful effects.



[1] See generally, EPA, NPDES Permitting Approach for Discharges of Nutrients in the Chesapeake Bay Watershed (Dec. 2004).

[2] Authorization to Discharge Under the National Pollutant Discharge Elimination System (Aug. 31, 2010); see also EPA, Permits Issued by the Mid-Atlantic Region (Oct. 5, 2011), http://www.epa.gov/reg3wapd/npdes/dcpermits.htm.

[3] Exec. Order No. 13508, 74 Fed. Reg. 23099 (May 12, 2009).

[4] EPA, Fact Sheet, Chesapeake Bay Total Maximum Daily Load (TMDL) (Dec. 29, 2010).

[5] 33 U.S.C. § 1313.

[6] EPA, Fact Sheet, Chesapeake Bay Total Maximum Daily Load (TMDL) (Dec. 29, 2010).

[7] Authorization to Discharge Under the National Pollutant Discharge Elimination System Municipal Separate Storm Sewer System Permit [hereinafter “DC Stormwater Permit”].

[8] DC Stormwater Permit §§ 4.1.1, 4.1.6.2, 4.1.7.2.

[9] DC Stormwater Permit § 4.1.1.

[10] DC Stormwater Permit § 4.10.1.

[11] EPA, Fact Sheet, National Pollutant Discharge Elimination System, Municipal Separate Storm Sewer System § 4.10 (2011), available at http://www.epa.gov/reg3wapd/pdf/pdf_npdes/Wastewater/DC/DCMS4FINALDCfactsheet093011.pdf.

[12] Paul Quinlan, “Cardin-Inhofe talks on Chesapeake Bay bill could turn to Clean Water Act changes,” E&E News (May 4, 2011), http://www.eenews.net/EEDaily/print/2011/05/04/10.

[13] Chesapeake Clean Water and Ecosystem Restoration Act of 2009, S. 1816, 111th Congress (Oct. 20, 2009); see also Quinlan, supra note 12.

[14] See Quinlan, supra note 12; see, e.g., Puget Sound Recovery Act of 2009, S. 2739, 111th Congress (Nov. 5, 2009).

[15] See Quinlan, supra note 12.

[16] Id.

[17] 33 U.S.C. § 1313.

[18] Press Release, EPA, “Washington:  Historic agreement on improving Lake Tahoe clarity signed by California and Nevada Governors,” (Aug. 17, 2011).

[19] See Kirk Moore, “EPA region chief says Barnegat Bay nutrient limit possible in 3 years,” Asbury Park Press (July 5, 2011).

[20] Id.

[21] See generally New Jersey Agricultural Experiment Station, Rutgers University, Quick Facts: 2011 New Jersey Fertilizer Law (May 4, 2011), available at http://snyderfarm.rutgers.edu/quickfacts.html.

[22] See, e.g., Press Release, State of Vermont, “Vermont:  ANR and EPA to Hold First Round of TMDL Small Group Meetings,” (Sept. 22, 2011).

 

Harold M. Shaw III is Counsel in the Washington DC office of King & Spalding LLP, where he focuses his practice on environmental, health and safety compliance, the development of corporate compliance programs and environmental matters in commercial transactions. Drew T. Bell is an Associate at King & Spalding’s Washington, DC office and is a member of the tort and environmental litigation practice group.

Please email the authors at hshaw@kslaw.com or dbell@kslaw.com with questions about this article.