Late last week, a federal district court in Maryland ruled that the U.S. Environmental Protection Agency (EPA) wrongfully denied our petition to regulate harmful runoff pollution from commercial, industrial, and institutional sites in Baltimore’s Back River watershed.
When EPA denied the petition in 2016, the agency refused to consider whether stormwater pollution from the sites is contributing to violations of water quality standards, as the Clean Water Act requires. Now a court has ruled that EPA’s decision was unlawful.
This ruling will require the agency to reconsider our petition. We’re hopeful that when it does, EPA will make the right decision for the people and wildlife that call this watershed home.
Runoff Pollution Contaminates the Back River
Baltimore’s Back River and its tributaries flow through eastern Baltimore City and Baltimore County before emptying into the Chesapeake Bay. In an area where over 70% of land use is urban, these waters provide important habitat for wildlife and unique recreational sites for people. The river’s banks are home to numerous waterfront parks where locals have picnics and go boating, crabbing, and windsurfing.
The river should be an asset for the communities that live nearby. Yet it’s legally designated as “impaired” because of high levels of nitrogen, phosphorus, and sediment pollution. Nitrogen and phosphorus, which come from sources like fertilizer and car exhaust, can cause foul-smelling algal blooms that prevent recreational uses and kill fish and other wildlife. Sediment pollution causes the water to become cloudy, or “turbid,” which can also interfere with people’s enjoyment of the water and harm the aquatic ecosystem.
Stormwater runoff from commercial, industrial, and institutional sites contributes a significant percentage of this pollution. These sites tend to have large amounts of impervious area—mainly in the form of parking lots and rooftops—which produce runoff containing high levels of contaminants whenever it rains. In most cases, that runoff flows directly into the Back River without any treatment.
The Clean Water Act Provides a Solution
In order to tackle this ongoing problem, NRDC submitted a petition to EPA in 2015—along with co-plaintiffs American Rivers and Blue Water Baltimore—asking the agency to require commercial, institutional, and industrial sites in the Back River watershed to obtain discharge permits.
According to the federal Clean Water Act, if a category of stormwater discharges is contributing to water quality violations, EPA must exercise its “residual designation authority” and either prohibit those discharges or require the dischargers to apply for permits. If it chooses the latter approach, the permits must require the sites to limit the amount of pollution in their runoff, such as by mandating actions or steps that they must undertake.
The law includes this requirement in order to ensure that all polluters do their fair share. If private stormwater dischargers get a free pass, that means municipalities—and local taxpayers—will bear the burden of cleaning up their mess.
But EPA Has Refused to Take Action
When EPA responded to our petition, the agency refused to answer the question of whether the relevant stormwater discharges are contributing to water quality violations in the Back River. Instead, it concluded that existing regulatory programs “adequately address” the discharges, and it denied the petition on that basis alone.
In fact, those “existing programs” are far from adequate to control this pollution.
EPA wanted to continue depending on local governments to clean up stormwater, rather than regulating the sites directly. But local governments don’t control the sites generating the runoff, and their municipal stormwater permits don’t require them to reduce stormwater pollution from the vast majority of these areas.
When the agency denied our petition, it never explained how these existing programs would be adequate to stop commercial, industrial, and institutional sites’ runoff from fouling the Back River. The more fundamental problem, however, was that the EPA shouldn’t have been considering this factor in making its decision in the first place.
A Federal Court Has Ordered EPA to Reconsider Our Petition
NRDC challenged EPA’s decision to deny our petition in federal district court in Maryland. On Friday, the court agreed with us and ruled that EPA’s rationale for the denial violated the Clean Water Act.
According to the court, EPA was supposed to base its decision on whether the stormwater discharges in question contribute to violations of water quality standards—period.
In the words of the court, “EPA may consider data from existing programs, but only for the purpose of determining whether the discharges from the . . . sites at issue contribute to water quality violations. Unless these programs prevent such contributions altogether or reduce them to de minimis [i.e., trivial] amounts, they cannot justify the Agency’s decision not to issue a permit.”
The court went on:
“EPA did not conclude that stormwater discharges from [these] sites do not contribute to violations of water quality standards because of existing programs. Instead, EPA demurred from answering the scientific question posed by the text of [the Clean Water Act]—whether the stormwater discharges at issue contribute to violations of water quality standards—because it apparently preferred to address the environmental impacts of stormwater discharges through existing programs. This EPA may not do.”
In the opinion, the court relied heavily on a recent ruling by a federal district court in Los Angeles in a similar case, in which we had challenged EPA’s denial of our petitions to regulate stormwater dischargers in two Southern California watersheds. In that case, too, the judge found that EPA had violated the law by denying our petitions on inappropriate grounds.
Under the court’s order, EPA must reconsider our petition in accordance with the judge’s ruling. That means it must determine, as a scientific matter, whether runoff from the sites in question is contributing to violations of water quality standards.
NRDC will work to make sure that EPA implements this decision and gives proper consideration to the evidence that we originally submitted in our 2015 petition.