Court decision undermines runoff pollution controls, but numerous important protections remain

In addition to looking nasty, sediment pollution is bad for aquatic life, and it’s causing all kinds of problems farther downstream in the Chesapeake Bay.  As EPA described,

Too much sediment in the water is a major problem impairing the Chesapeake Bay. Excess floating clay and silt particles cause clouding of the water, and blocking sunlight from reaching underwater grasses. These underwater grasses can't grow without sunlight, and die, harming young fish, blue crabs and other aquatic life needing bay grasses for shelter to survive. Underwater grasses are also a critical food source for many of the Bay's key waterfowl species.

So, when EPA was required – after Virginia failed to do so – to establish a limit on how much sediment Accotink Creek could handle and still meet state-established water quality goals, it was attacking an important pollution problem.  And when EPA looked at what was causing the pollution problem there, it found that the sediment load was tied to the volume of stormwater.  The agency then developed a sediment target level that it expressed as a stormwater volume, knowing that ultimately managing the sediment problem would require reducing the amount of stormwater pouring into and tearing up Accotink Creek.  This approach would also give local officials a measuring stick to evaluate the relative value of different stormwater management techniques, including green infrastructure – a suite of practices to infiltrate, capture, or otherwise manage stormwater onsite that are being embraced by community leaders nationwide.

And that’s when all Heck broke loose.  As a Virginian, I’m sad to say that our state’s Attorney General, Kenneth Cuccinelli, led the attack on EPA, and spared no right-wing hyperbole along the way, claiming that EPA’s approach would cause municipal officials to "take people's houses, evict them, knock the houses down and plant grass,” and maligning EPA: “I refer to it as the Employment Prevention Agency. They’re very good at that.”  Along with the Attorney General, some folks commenting on the cleanup plan took to wild speculation:

The results of redevelopment restrictions are obvious. An inability to redevelop, either by high-cost mandates on stormwater treatment or limits to impervious surface, will result in increasing urban and suburban blight. New businesses will be unable to relocate in Fairfax county, or will choose not to do so because of the deteriorating quality of the housing and commercial stock. As blight grows, families and businesses will relocate to counties not subject to these TMDLs. Crime will grow in these blighted neighborhoods and commercial areas. The county will see growth in drug marketing and gang violence. Because property values will decrease, the county will have to address the increased public safety risks with fewer police and fire resources.

Hogwash.  For one, as NRDC’s 2011 report, “Rooftops to Rivers II,” discusses, using green infrastructure solutions to address runoff pollution problems makes good economic sense.  A 2007 U.S. EPA study found that “in the vast majority of cases…[green infrastructure] practices save money for developers, property owners and communities while protecting and restoring water quality.” The American Society of Landscape Architects released a survey in October 2011 that found green infrastructure reduced or did not influence costs 75 percent of the time.  And what’s more, green infrastructure can create a range of water quality, supply, and other benefits, making it a powerful tool for community improvement.

Moreover, the cleanup blueprint developed by the civil servants at EPA was not a land use directive or set of restrictions on land use; it merely provided the scientific justification showing how the volume targets related to sediment levels and would lead to achievement of Virginia’s water quality goals for Accotink Creek.  The details – from timing to which sources would need to reduce their stormwater loads and by how much – would be up to local officials to design. 

Unfortunately, these flexibilities did not stop Attorney General Cuccinelli and others from suing EPA over its approach and, unfortunately, the court agreed with EPA’s opponents.  The judge ruled that “EPA’s authority does not extend to establishing TMDLs for nonpollutants as surrogates for pollutants.”  I disagree with the analysis in the case, for a few reasons:

• I believe the court dismissed a key argument too quickly, namely that – even if one accepts that loads can only be established for “pollutants” under the law and that stormwater isn’t a “pollutant” (but see below) -- EPA had established a maximum load for sediment.  It only expressed that sediment load as a function of a closely-related factor: stormwater volume.
• The court incorrectly stated that EPA conceded that stormwater is not a pollutant.  In fact, EPA’s brief to the court pointed out that the Clean Water Act defines “pollutant” to include municipal waste, of which runoff pollution is an example.
• In analyzing the reasonableness of EPA’s surrogate approach, the court gave short shrift to solid agency reasons for looking at stormwater volume, not the least of which is that it is consistent with the core principles of the Act – such as protecting the physical and biological integrity of surface waters.

Despite these disagreements, I think the court’s decision is relatively narrow.  If it stands, it definitely throws a monkey wrench into what I think is an effective tool for addressing the problems of runoff pollution to Eastern Virginia streams directly, but it does not eliminate other similar tools.  In particular, EPA can – and must – take several steps:

• Establish cleanup targets for sediment and any other pollutant that is causing harm to the aquatic life of Accotink Creek, and enforce both those requirements and the sediment cleanup plan for the Chesapeake Bay. 
• Ensure that Virginia follows the Clean Water Act’s permitting requirements rigorously.  For municipal stormwater systems, like the one operated by Fairfax County that discharges into Accotink Creek (and several other streams), the Act requires permits that reduce pollutant discharges to the “maximum extent practicable” and to meet state-established water quality goals and cleanup targets.  To meet these demands, stormwater permits around the country have increasingly incorporated controls on runoff; as an example, Washington, D.C.’s recent permit revision contains green infrastructure mandates and requires certain new and redeveloped properties to retain the first 1.2 inches of rainfall.
• Most importantly of all, establish consistent national runoff pollution standards.  EPA has clear authority in the Clean Water Act to develop regulations that control stormwater sources “to protect water quality” and, when it does, “shall establish a comprehensive program to regulate such designated sources.”  Moreover, the “program may include performance standards, guidelines, guidance, management practices and treatment requirements, as appropriate.” EPA is reforming its national stormwater standards, and is poised to propose improvements that will address stormwater volume head-on, in order to slash the pollution of our waterways and the destruction of streams in communities around the country. 

Although some in the corporate bar have said that the case “could have far-reaching consequences,” I wouldn’t count on it.  For one, despite some suggestions that the court’s decision might implicate the validity of the Chesapeake Bay cleanup blueprint, I can see no connection between the issues.  In addition, I give no credit to wishful claims that the decision “is likely to cause EPA to re-evaluate whether it can regulate stormwater flow in developing its national post-construction stormwater rule, and whether it can include stringent restrictions on stormwater flow in municipal separate sewer system (MS4) permits, given the litigation risk of embracing such a policy.”  The Clean Water Act language on which the court in the Accotink case relied is far different from the language that governs municipal permitting and EPA’s stormwater regulatory authority.

All in all, this decision should not substantially set back needed runoff volume controls, unless EPA backs off from enforcing the law as detractors are seemingly hoping.  Instead, EPA needs to give pollution control officials and municipal leaders strong weapons in the fight against stormwater pollution.