HOW EPA PLANS TO MOVE AHEAD ON STORMWATER

By BILL DIAMOND

EDITORS NOTE: The following article is from NATION'S CITY WEEKLY, December 15, 1986 and was written by Bill Diamond, Chief of Program Implementation Branch of the Permits Division, Office of Water, United States Environmental Protection Agency.

PLEASE NOTE: In the portion of the article under "Current Law — Who — When — What", WHO is identified as urbanized areas in excess of 50,000 population. This 50,000 population figure is pursuant to proposed USEPA regulations. As the law is written there is no population cut off! All Municipal stormwater, regardless of population is covered by the current CLEAN WATER ACT. It is highly probable suit will be filed to require USEPA to remove their population cut off and require permits of all municipalities. We urge all municipal officials to contact their Congressional Representatives and urge re-passage of the CLEAN WATER ACT, in the same form as was vetoed by the President.

Since the reauthorization of the Clean Water Act was not signed into law, the Environmental Protection Agency must move ahead to implement current law without further delay.

While the Clean Water Act is good environmental law, like everything else, it can lead to undesirable results in certain situations. That is what we face now with stormwater regulations.

There are a number of problems related to this issue:
legal, administrative, economic, technical, and environmental. To keep matters in perspective, I'll start with environmental concerns.

It's indisputable that there are pollutants in stormwater runoff. Hundreds of studies show the presence of everything from sewage to silt; and oil and grease to toxic metals and pesticides.

The mere presence of these pollutants is not environmentally significant. However, runoff can cause water quality problems in receiving waters. Some are short term problems; others are more persistent. Some are very serious.

The second critical problem is legal and rests with the Clean Water Act itself. The Act explicitly states that it is illegal to discharge pollutants to water without a permit.

Two Clean Water Act definitions are crucial:

• "pollutant" — Act's definition is very broad and almost anything you can imagine is included.

• "point source" — traditionally, a point source means a pipe, but the Clean Water Act goes far beyond that. The term of art is "any discernible, confined and discrete conveyance" from which a pollutant may be discharged, e.g. ditches, channels, conduits, and discrete fissures. This is important, because if you don't have a point source, you don't need a permit.

These definitions combine to drag stormwater run-off into the permit program. There are pollutants in stormwater. Stormwater sewer systems, curbs and parking lot burms all qualify as point sources.

That means millions and millions of pipes, ditches and culverts nationwide are required to have Clean Water Act permits. Also important to note is that violations of the Act are subject to severe penalties of up to $10,000 per day per violation.

The administrative part of the problem is that the National Pollutant Discharge Elimination System (NPDES) permit program is ill-designed to control most stormwater runoff.

The permit program was structured to regulate pollution from industrial facilities or municipal sewage treatment plants. At those sites, there are concentrated discharges of known pollutants, continuous flows and a limited number of discharge points. By contrast, stormwater is intermittent, variable and dispersed.

The permit program is geared to develop and issue a finite number of permits. It has taken EPA and States 14 years to issue 60,000 permits. The "major" stormwater

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permits alone would double that number. If you count all stormwater outfalls, you would need a program 10 to 50 times the size of today's entire program.

The number would overwhelm the program and is like trying to put a glass slipper on an elephant.

The Agency has struggled to make sense of the Clean Water Act stormwater requirements for 14 years. We have tried through several rulemakings to take an approach that balanced common sense and environmental protection.

The U.S. Circuit Court of Appeals have ruled against us. Courts have taken the broad Clean Water Act definitions and interpreted them broadly. On stormwater specifically, the courts have applied the permit requirement literally.

CURRENT LAW

Environmental groups have charged the Agency with foot dragging on implementing a stormwater program. The personnel, money and effort applied to this problem demonstrate that charge is untrue.

However, our assessment of relative environmental importance does mean that we have higher priorities than permitting millions of rain drains.

Nonetheless, we have committed to the courts that we will move ahead promptly to implement current law.

What it means for cities and towns in terms of Who, When, What

WHO — Current regulations require permits for all stormwater discharges in urbanized areas, that is, those areas with populations in excess of 50,000.

The 1980 census identified 457 cities and towns meeting that criteria.

WHEN — Permit applications have to be received by December 31, 1987 for these cities and towns.

WHAT — First, EPA's regulations require submission of comprehensive data on a standard form for each outfall. That information includes:

• data on all environmental permits that city holds,

• a topographic map identifying every outfall by latitude and longitude,

• sampling data from each outfall for several hundred pollutants (that means having a person in the ditch to take a sample when it starts to rain and every hour for the next 3 hours). That data then has to be sent to a lab and properly analyzed.

Estimates indicate that a single analysis can cost between $1,000 and $8,000. Total application costs for cities and towns have been estimated to be $8 billion.

Second, once an application is submitted, EPA or the State drafts a permit.

• The limits and requirements must meet the Clean Water Act standard of Best Available Technology (BAT) and protect local water quality.

What that means will vary from place to place. It can range from basic management practices, such as street sweeping and proper scooper laws, to actual end of pipe treatment, such as illegal hook-up identification and control programs and rerouting of storm sewers to sewage treatment plants.

A fundamental premise is that it's more cost effective to keep pollutants out than to remove them once they are in runoff.

When a permit is issued, the discharger is usually required to take samples and submit reports to demonstrate compliance. If it will cost billions to apply, it is safe to assert compliance will cost many billions more.

REGULATORY RELIEF

EPA is in the final steps of trying to modify the regulations to provide some appropriate relief. Since the rulemaking is not final, all that can be provided now are some of the general concepts:

• In response to comments on proposed rules, we are looking at narrowing the municipal scope of coverage by linking Group 1 classification of cities to known environmental impacts. This could decrease the present Group 1 cities from a range of 500 to 1,000 down to 150 to 200.

• Modification in application requirements are also being considered. Sampling and analysis may be reduced from the several hundred pollutants currently required to that much smaller group which studies indicate are most likely to be present in urban runoff.

The rulemaking has completed the final Agency review process and the Administrator has stated he will sign the package this month. It is now undergoing review at the Office of Management and Budget.

Since there is only a year until applications are due, the Agency is hopeful there will be no further delays so cities and towns will have adequate time to plan, gather and submit data.

If the rule is not promulgated in the near future, cities will have to start complying with the more stringent existing regulations.

LITIGATION

Although what I've just described will impose a significant new work load on cities and towns, it could be even worse.

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The Agency is in Court on two stormwater lawsuits and the rulemaking described above will likely generate a third. Basically, those suits claim:

• that we should expand, not narrow, the coverage of the program;

• that we should accelerate, not extend, deadlines; and

• that we should increase, not decrease, the required sampling and analysis.

Given the present law and the regulatory and litigation history of this program, there are good arguments in support of each of those contentions. No one should be surprised if the environmental groups prevail in any of those cases.

CONCLUSION

I'll finish by answering the first question we're always asked on this subject. It comes in different forms.

Are you serious?

Does anyone really expect us to spend all this money to sample rain when we have real environmental problems?

What are you going to do with those millions of applications?

What will happen if I just continue to ignore this ridiculous law?

There are several answers;

Yes, we are serious.

It may not be the best law but we are required to implement it and we will until it is changed.

Stormwater is not our highest priority for permitting or enforcement. But, where there are water problems, we will do something about it.

In terms of your decision on whether or how you will comply, there are environmental groups who have made stormwater a priority. They should probably be going after bigger issues but this is the one they have picked.

The Clean Water Act allows citizens suits. While we may not devote a lot of effort to seeking $10,000 per day per outfall fines for failure to submit an application, they can and they may. If you don't have a permit or do not apply for one, it is a very easy case for them to win.

In recent years, there has been a large increase in citizen suit activity. They have been very successful and they have talked about changing their focus from industry to municipalities.

In the final analysis, municipal officials cannot over-emphasize to their members of Congress the importance of legislation being adopted which would resolve this dilemma. •

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