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Open letter to DOE: Does Ecology exceed EPA requirements?

from Pearl Rains Hewett

Posted 1/30/2013

Clouded Waters: A Senate Report Exposing the High – U.S. Senate

 United States Senate Committee on Environment and Public Works

Minority Staff

Released: June 30, 2011

Contacts:

Matt Dempsey Matt_Dempsey@epw.senate.gov (202) 224-9797

Katie Brown Katie_Brown@epw.senate.gov (202) 224-2160

Report Online at www.epw.senate.gov/inhofe

 

With this additional attached documentation, in its entirety
I am again, requesting the WA State DOE to respond to my questions.

DOE SMP GOES BEYOND EPA STANDARDS

Throughout the development of federal water laws it was the responsibility of states to achieve water quality,4 and many of them have continued to go above and beyond EPA’s minimum federal standards. Instead of acknowledging this progress and empowering it.

 

EPA NOT SCIENTIFIC FINDINGS (DOE not scientific)

These rulemakings are not the result of legislation or the outcome of scientific findings. Instead, these are the result of lawsuits by environmentalists and represent changes in long-held EPA positions, making discretionary duties non-discretionary. Additionally, in a rush to regulate, EPA/DOE  is moving ahead without solid science and with no input from the communities who will shoulder the costs.

Pearl Rains Hewett Trustee

George C. Rains Estate

Member SMP Update Committee

 

 

Following is a summary and some of the information contained in the report:

UNITED STATES SENATE REPORT

Clouded Waters:

A Senate Report Exposing the High Cost of EPA’s Water Regulations and Their Impacts on State and Local Budgets

United States Senate Committee on Environment and Public Works

Minority Staff

Released: June 30, 2011

Contacts:

Matt Dempsey Matt_Dempsey@epw.senate.gov (202) 224-9797

Katie Brown Katie_Brown@epw.senate.gov (202) 224-2160

Report Online at www.epw.senate.gov/inhofe

Executive Summary

This report examines the impacts on state and local governments of several water regulations that EPA is, or will shortly be, implementing: new water quality criteria in Total Maximum Daily Load (TMDL) and numeric nutrient criteria (NNC) for geographic locations, new stormwater rules, and the new Pesticide General Permit (PGP). These rules carry with them significant unfunded mandates that will cost state and local governments tens, if not hundreds, of billions of dollars.

Importantly, these new rules are not the outcome of legislation or rigorous scientific findings, but a direct result of a number of lawsuits with environmentalists. The agreements to regulate often did not include any meaningful opportunity for input from state and local entities.

Chesapeake Bay TDML: In order to achieve nutrient and sediment limits, EPA has implemented a strict TMDL for the 6 states in the Chesapeake Bay watershed. It is not known whether this TMDL will achieve its intended purpose of a clean bay, and states are projecting billions in costs under the threat of an EPA takeover of state water programs.

o

Maryland: TDML is estimated to cost the state $10 billion through 2017 and affected industries would collectively shrink by over $10 billion over the same time.

o

Virginia: The state’s TDML plan could cost $7 billion.

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West Virginia: Officials say it could cost $240 million to upgrade 10 wastewater treatment plants for compliance.

Florida Numeric Nutrient Criteria: Again, to limit nutrients, EPA has proposed strict limits on the amount in given water bodies. EPA is proposing to limit the nutrient flow from virtually all surface waters in Florida.

o

Florida: Compliance for agriculture will range from $855 million to $3.069 billion. An estimated 7,780 jobs will be lost in agriculture and 14, 545 jobs will be lost in Florida.

Stormwater regulations: These new rules will likely incorporate some measure of mandatory green infrastructure and increased permitting costs.

o

Green infrastructure will costs billion with uncertain benefits.

o

States will face enormous increases in costs to handle the new permits.

Pesticide General Permit: The PGP will require, for the first time ever, duplicative CWA and pesticide permits for pesticides applied to water.

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Colorado: is estimating a 25% increase in permit applications costing $21 million.

o

Maine: will need to divert resources from existing programs to deal with the additional 5,000 to 6,000 new pesticide permittees.

o

North Carolina: One mosquito control program in the state estimates that its annual budget will have to increase from $300,000 to over $1.6 million in order to comply.

EPA’s approach is a regulatory structure that involves costly mandates with uncertain environmental benefits. On the other hand, locally driven voluntary and partnership programs continue to achieve progress in water quality often in a highly cost-effective way. To ensure the health of our waters, the EPA should follow the Clean Water Act and allow state and local residents the flexibility and support to achieve their water quality goals.

2

Table of Contents:

Introduction 1

I. New Water Quality Criteria 2

A. Chesapeake Bay Total Maximum Daily Load 2

B. Florida Numeric Nutrient Criteria 5

C. Expansion of Water Quality Criteria 7

II. Stormwater Regulation 8

A. Construction and Development Effluent Guideline Limitations 8

B. New Stormwater Rulemaking 9

III. Pesticide General Permit 12

VI. Locally Driven Approaches 14

Conclusion 15

Appendix: Charts 16

Notes 18

1

Introduction:

When Congress passed the Federal Water Pollution Control Act, better known as the Clean Water Act (CWA), in the 1970s, it recognized the primary role of states in the protection of water bodies. The CWA clearly affirms that “it is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution.”

1

There is good reason for this: state and local officials have intimate familiarity with their waters and know how best to protect, maintain, and improve them. Unfortunately, most of the recent clean water policies coming out of Washington seek to strengthen federal control at the expense of local authority, placing an inordinate amount of power into the hands of the Environmental Protection Agency (EPA).

On April 15, 2010, EPA Administrator Lisa Jackson arranged a forum in order to “reinvigorate” the CWA. “I want to see a huge leap forward in water quality like we saw in the 70’s after the passage of the CWA,” Jackson said.

2 While many people would echo this sentiment, EPA has proposed to achieve this by aggressively moving forward with rules that will “increase the regulatory universe.”3 EPA is working under the assumption that greater federal regulation produces greater environmental benefits.

Throughout the development of federal water laws it was the responsibility of states to achieve water quality,

4 and many of them have continued to go above and beyond EPA’s minimum federal standards. Instead of acknowledging this progress and empowering it, EPA is usurping state authority and instituting expensive regulations that will provide uncertain environmental benefits.

This report examines the increased regulatory universe and the impacts on state and local governments of several key regulations that EPA has either recently promulgated or is intending to implement in the next few months: new water quality criteria in Total Maximum Daily Load (TMDL) and numeric nutrient criteria (NNC) for geographic regions, new stormwater rules, and the new Pesticide General Permit (PGP) —all of which will impose costs on local communities and their residents.

Importantly, these rulemakings are not the result of legislation or the outcome of scientific findings. Instead, these are the result of lawsuits by environmentalists and represent changes in long-held EPA positions, making discretionary duties non-discretionary. Additionally, in a rush to regulate, EPA is moving aheadwithout solid science and with no input from the communities who will shoulder the costs. Limited state and federal assistance

5 leaves many communities with few options other than to pass the extra costs of these programs and mandates onto residents, and the benefits of regulation do not outweigh the costs. As this report also shows, they will likely be significant pain for little, if any environmental gain. 2

I. New Water Quality Criteria:

EPA is currently implementing two water quality criteria rules that will have uncertain environmental benefits and high costs. These rules are the direct result of lawsuit settlements between EPA and environmental groups. Unfortunately, these rules will not be limited to the regions they currently impact. “This new approach will not end with the (Chesapeake) Bay; EPA has already revealed its plan to take similar action in other watersheds across the nation, including the Mississippi River watershed.”

6 These regulations are setting the stage for the entire country.

A. Chesapeake Bay Total Maximum Daily Load

In response to a lawsuit settlement with the Chesapeake Bay Foundation and others (

Fowler v. EPA),a 7 EPA has begun the implementation of the Chesapeake Bay TMDL for nutrients being released into the bay. The goal of TDML is to lower the amounts of nitrogen, phosphorus, and sediment in the region’s waterways, thereby restoring clean water to the Chesapeake Bay.8

a

This lawsuit was filed in January 2009 by the Chesapeake Bay Foundation who claimed that EPA failed to take adequate measures to protect and restore the Chesapeake Bay. The settlement agreement included establishing “stringent” Chesapeake Bay TMDLs, creating an effective implementation framework, an expansion of EPA’s review Chesapeake Bay watershed permits, and initiating rulemaking for new regulations for concentrated feeding operations and urban and suburban stormwater. EPA also agreed to establish publically accessible tracking and accounting system to monitor progress in reducing pollution through the TMDL and two-year milestones. EPA agreed to announce its TMDL for the Chesapeake Bay by December 31, 2010.

The Bay is indeed a national treasure with immense economic resources and, despite claims to the contrary, the health of the Bay has been improving significantly with minimal federal government mandates. Voluntary measures by the states, in conjunction with municipalities, the agricultural community, and private interests at state and local levels, have improved the health of the Bay over the past 25 years in the face of increasing population and development.

9 Unfortunately, EPA is minimizing these successful, cost effective measures and has instead set up a mandatory federal plan – a plan that has no guarantee of improving the current course.

Additionally, the science used by EPA to set the TMDL contains inconsistencies in the data and modeling. Some sectors may already be meeting their targets but are not being credited appropriately. The only thing certain about the TMDL is the cost. The price tag of this plan will be in the billions of dollars and will cost individual localities and states millions.

At a congressional briefing in January 2011, EPA outlined the improvements made in the bay over the past 25 years and the ultimate goals of the TMDL plan (see chart 1).

10 EPA admits, and their data shows, that voluntary measures have reduced nitrogen, phosphorus, and sediment enormously over the course of 25 years despite increases in population, development, and agricultural output in each of the 6 states that make up the Chesapeake Bay watershed.11 The reductions made through voluntary measures over the past 25 years and the average reductions made per year are significant (see chart 2). If this long term, per year reduction 3

trend continues, the nitrogen, phosphorus, and sediment goals written in the TMDL plan would be reached by years 2026-27, 2022-23, and 2035-36 respectively. This means that the Bay is on pace to reach the goals outlined in the TMDL regardless of TMDL implementation.

The goal of the TMDL is to have all pollution controls in place by 2025. This does not mean that the nutrient reduction goals will be met at that time, or that they will be met more quickly than the current trajectory. As EPA noted at the congressional briefing, there is no timeline for when the Bay will actually reach the nutrient goals or how long the lag time will be between implementation and restoration.

12 Because of scientific uncertainties and unknowns, there is no guarantee that the goals will ever be met.

Not only is the outcome of the TMDL uncertain, but the data and assumptions used to create it are also disputed. A report done by LimnoTech, one of the nation’s leading water sciences and environmental engineering consulting firms, questions much of the data used by EPA in fixing pollution limits for the Bay.

13 The report compared EPA’s TMDL with data from the U.S. Department of Agriculture.14 In creating the TMDL, EPA looked to agriculture, wastewater treatment, and urban runoff to make the majority of reductions and assumed many potential reductions were not being made in these sectors. However, USDA’s numbers show EPA is underestimating reductions already being made by the agriculture community. EPA estimates that only 50% of farmland in the watershed is using conservation tillage while USDA estimates that 88% of the cropped acres are already using conservation tillage (see chart 3).15

This variation is one of the many inconsistencies with EPA’s data which will have a huge impact on the established TMDL level. “If USDA’s numbers are correct, agriculture has already significantly surpassed EPA targets for reductions in sediment and phosphorus.”

16 “Through the Bay TMDL, EPA is implementing a rule that will have a significant impact on economic growth and development, including food production, in the watershed. It is critical for EPA to get the facts right including providing an accurate accounting for existing management and conservation practices before it imposes potential economic disaster on agricultural producers in the Bay watershed.” 17

Furthermore, the accounting of nutrient load reduction practices is inconsistent across states in the Chesapeake Bay watershed, yielding inaccurate and unreliable reports to the Chesapeake Bay Program (CBP). Therefore, the accounting conducted by the CBP for nutrient load reduction is, at best, a guess.18

Prior to finalizing the TMDL, EPA requested that every state submit a Watershed Implementation Plan (WIP) which outlined how states will reach their allotted nutrient goals. If EPA found that the WIPs were insufficient in meeting water quality goals, they would seek to implement strict federal backstop measures through new National Pollutant Discharge Elimination System (NPDES) permit requirements and withholding of federal dollars to achieve satisfactory implementation. Unlike Clean Air Act permits, federal backstopping is unprecedented and not a legal requirement of the CWA. The legality of EPA’s actions in setting the TMDL has been disputed

19 and runs contrary to EPA’s own statements on TMDL’s: “Neither 4

the CWA nor the EPA implementing regulations, guidance or policy requires a TMDL to include an implementation plan. EPA therefore does not approve or disapprove implementation plans as part of the TMDL process.”

20

For select Virginia localities, the total cost of TMDL implementation is $11.5 billion and the total annual cost is $824.8 million, (see chart 4).

21 For a small locality like the City of Falls Church, with an annual budget of around $60 million, the annual costs are 3% of its total budget.22 Consultants have recommended a 26.9% rise in sewer rates for FY 2012 and a 9.5% rise for each of the following fiscal years for the City.23 The Falls Church City Council recently adopted the consultant’s recommendations and as a result, “rates will jump an average of $8 a month for city users, with the additional funds needed almost entirely to meet the City’s obligations for its share of massive water treatment plant upgrades…equired by the federal EPA.”24 This is almost $100 per household for FY12 and this number will only increase in subsequent years. For the areas located within the Hampton Roads Planning District it is estimated that the annual cost will be $679 million.25 This is about 10% of total revenues for these localities.26 The estimated cost for the rate payers in this district is staggering.

These costs to the rate payer will be compounded by the impact to jobs and the overall economy. A report by the Sage Policy Group quantified these costs for Maryland: “Impacted industries would collectively shrink by over $10 billion over the course of implementation. Maryland’s economy would also support 65,000 fewer jobs (measured in job-years) over the course of implementation. These jobs would be associated with $2.8 billion in lost wage/salary income. The average job lost would pay nearly $43,000/year.”

27 And these are the losses for only the implementation of Phase I of the TMDL.

The Chesapeake Bay Journal

noted other costs at the state and local level throughout the watershed, “Maryland’s plan could cost $10 billion through 2017. Virginia said its state plan could cost $7 billion…ynchburg, VA, officials said they expected stormwater improvements needed to comply with the TMDL would cost $120 million. Altoona, PA, is considering a 58 percent sewer rate increase to pay for a $70 million wastewater treatment plant upgrade, mainly needed to meet Bay goals. West Virginia officials say it could cost $240 million to upgrade 10 wastewater treatment plants in its portion of the watershed.”28 These numbers are just a glimpse into the costs that will be shouldered by every person who lives and works in the Chesapeake Bay watershed. Some estimates have put watershed wide implementation anywhere from $15 to $30 billion, but by looking at the localities mentioned above the figure is most likely much higher.29

The affected parties are not taking the new TMDL without a fight. On January 10, 2010, The American Farm Bureau Federation (AFBF) sued EPA in a Pennsylvania Federal District Court alleging that the Agency’s promulgation of TMDL standards for the Chesapeake Bay region was legally defective.

30 The AFBF alleged that EPA’s TMDL standards exceeded its authority under the CWA, that the assigned pollutant loads are based on erroneous information, the information used to derive the assigned pollutant loads was fed into computer models that were unsuitable for deriving such loads, and that during the comment period the public did not 5

have access to the information it needed to comment effectively on the modeling results and the assumptions in the final TMDL.

31 EPA responded to these challenges claiming that its TMDL is on solid legal ground and within its authority provided by the CWA.32

B. Numeric Nutrient Criteria in Florida

Similar to the Chesapeake Bay TMDL is EPA’s proposed numeric nutrient criteria (NNC) for water bodies in the state of Florida. The Florida NNC also did not generate from a scientific evaluation of the best ways to protect waters in the state but, again, EPA agreed to set statewide standards to settle another court case with an environmental organization (

Florida Wildlife Federation v. Jackson).b 33 The NNC attempts to limit total nitrogen and total phosphorus in lakes, streams, springs, and canals throughout the state. Like the TMDL, the NNC is fraught with uncertainties in the creation and attainment of the nutrient levels set out in the proposal. This is another example of EPA ignoring state’s efforts to manage their own waterways and instead establishing mandatory federal criteria. Ultimately, the only certainty associated with the NNC is the cost to Florida, agriculture, industry, water treatment facilities and the Florida citizens.

b

In July 2008, environmental groups brought suit against EPA, asserting that EPA was required to make a determination that Florida’s narrative nutrient standard was inadequate, thus obligating EPA to propose new standards. EPA denied that it was required to make such a determination. However, before the conclusion of the suit, EPA proceeded to make a determination that Florida abandon the narrative nutrient standards and adopt a NNC for its lakes and flowing waters. As a result of this determination, the environmental groups and EPA reached a settlement that set deadlines for the publication and adoption of such standards.

For each water body type, the NNC uses a different method to determine impairment. For lakes, EPA categorizes 3 types: “colored,” “clear and alkaline,” and “clear and acidic,” and is proposing appropriate criteria levels for each type.

34 Waters could be considered impaired if they don’t meet the proposed criteria. This method fails to take into account the biological diversity and natural lake variability in Florida, meaning, not all lakes fit into one of the three specific categories. If a lake does not fall within the narrow criteria of EPA’s three types, a biologically healthy lake could be considered impaired.

The criterion for rivers and streams is based on the reference approach.

35 This approach identifies unimpaired waters and establishes nutrient criteria based on levels in those waters. Similar to lakes, this approach ignores cause and effect, may set criteria below background levels, and is not based on nutrient levels needed to protect designated uses. Through the NNC, a water body could be considered impaired because it does not meet EPA criteria but would, under closer inspection, actually be non-impaired. The criteria for springs, clear streams, and canals have similar issues that will possibly set nutrient levels below natural background.36 Unfortunately, each method is scientifically uncertain and may have no environmental benefits. In fact, in some cases the NNC could lead to environmental degradation. 6

EPA admits, in the notice of proposed rulemaking, that “its proposed lake criteria do not account for natural lake variability other than that provided by color and alkalinity classification and that its proposed streams criteria ‘may be either more stringent than necessary or not stringent enough to protect designated uses.’”

37 EPA’s Science Advisory Board (SAB) advised EPA that “numeric nutrient criteria developed and implemented without consideration of system specific conditions (e.g. from a classification based on site types) can lead to management actions that may have negative social and economic and unintended environmental consequences without additional environmental protection.”38

The NNC will have devastating impacts on Florida’s economy and nowhere is that more clear than agriculture. The initial costs for agriculture to implement all practices for compliance with the NNC will range from $855 million to $3.069 billion.

39 The annual costs are estimated to range from $271 to $974 million.40 Lost revenues from land taken out of production in order to implement water treatment practices are estimated at $631 million a year.41 This lost revenue from converting agricultural land will have a trickledown effect on suppliers and employees at an expected cost of $1.148 billion annually.42 All of these economic losses within agriculture will be compounded by job losses. An estimated 7,780 full-time and part-time jobs will be lost in the agricultural sector and an estimated 14,545 jobs will be lost in the Florida economy.43

But the impact of the NNC does not end with agriculture. If EPA implements the stricter “end-of-pipe” criteria (requiring discharger effluent to be at or below NNC levels) the total annual costs could range from $3.1 to $8.4 billion.

44 Even under the less strict Best Management Practices and Limit of Technology standards, in which effluent is not at the proposed NNC, costs are estimated to range from $1.0 to $3.2 billion.45

With an estimated 5,147 water bodies affected by the NNC, many industries will be impacted. The pulp and paper industry predicts that water treatment will increase the cost of producing paper by $5 to $6 per ton.

46 The Phosphate industry estimates that compliance through reverse osmosis technology will increase CO2 emissions by 31,000 tons per year, SOX emissions by 100 tons per year and NOX emissions by 50 tons per year.47 The impacts of the NNC will also reach local residents through higher utility rates. Sewer rates could increase by as much as $673 to $726 per household in areas where tertiary upgrades are needed.48 With more than 20 counties in Florida having poverty rates that exceed 20%, and the annual costs in these counties expected to total between $256 and $647, the impact to these residents will be significant.49

Estimates and assumptions by EPA have muddled the science, set unrealistic levels in the NNC, and ignored the true cost. In many cases, the removal of nutrients below natural background levels will be required and will have unintended negative environmental impacts. This will be done at the expense of the state’s economy and jobs. Additionally, it is unclear how EPA will measure compliance with the NNC or TMDL. Without acceptable ways to determine current water quality, an NNC or TMDL is a guess. Compliance with the NNC or TMDL is nearly impossible to demonstrate and selecting when and where to measure water quality is arbitrary. It becomes regulation for the sake of regulation.

7

In response to these staggering costs for uncertain environmental gain, the state of Florida is fighting to retain some authority over their water. The State of Florida and others

50 have filed lawsuits against EPA arguing that the Agency’s actions are inconsistent with the intent of the CWA. They argue that the idea of cooperative federalism, whereby the States would be responsible for the control of water quality with oversight by the EPA, is being ignored.51 In addition, the groups assert that the new rules are based on faulty scientific methodologies and given current technologies, contain criteria that are generally impossible for stormwater and wastewater systems to attain.52 Further, officials believe that the impact to Florida’s economy will be in the billions, costs which will ultimately be borne by the local users or in the case of government-owned utilities, by higher tax rates.53

C. Expansion of Water Quality Criteria

Despite the clear problems with EPA’s foray into statewide NNC, they are nonetheless, continuing to push other states to implement NNC. On May 16, 2011, a guidance memo went out to all EPA Regions, and State, interstate and tribal water program managers, outlining how to develop numeric nutrient criteria. The letter stated that “It has long been EPA’s position that numeric nutrient criteria targeted at different categories of water bodies and informed by scientific understanding of the relationship between nutrient loadings and water quality impairment are ultimately necessary for effective state programs.”

54 EPA also sent a letter to Illinois EPA, ordering Illinois to expeditiously adopt new or revised water quality standards for waterways in the Chicago area. EPA stated that if Illinois does not make changes to their water standards, EPA promptly will.55

Additionally, EPA has begun laying the foundation for other large scale TMDL’s like Chesapeake Bay. Executive Order 13508 calls on EPA to develop pollution-control strategies in the Chesapeake Bay that “can be replicated in efforts to protect other bodies of water,”

56 and EPA has awarded a $7.2 million contract to environmental modeling firm TetraTech to study and model the Mississippi River and Gulf of Mexico for nutrient criteria development.57 EPA has been unclear when asked if they are currently developing a Mississippi River/Gulf of Mexico TMDL.58

Even if EPA doesn’t act on their own accord to develop large watershed TMDLs and NNC, they may be compelled to set them by another lawsuit. EPA has not yet acted on a petition for rulemaking filed on July 30, 2008, by the Natural Resources Defense Council (NRDC) and other petitioners submitted to the EPA under section 4 of the Administrative Procedures Act. The petition requested that EPA “exercise its powers under Sections 303(c)(4) and 303(d) of the CWA . . . to prepare and publish numeric water quality standards and establish TMDLs needed to protect the nation’s waters, or at least the waters in the Mississippi Basin.”

59 On April 11, 2011, the Minnesota Center for Environmental Advocacy, on behalf of a number of groups, quietly sent a letter to EPA noting that officials have failed to respond to activists’ 2008 petition within a reasonable amount of time, and if “EPA fails to respond to the petition by June 30, 2011, a full three years after it was filed, we will be forced to pursue legal remedies.”60 8

II. Stormwater Regulation:

Some of the most costly regulations set to be unveiled are EPA’s new stormwater rules.

61 Stormwater is the result of rain or melting snow that runs off city surfaces; as it flows it picks up urban pollutants such as oil, fertilizers or other chemicals. This runoff could flow directly into a body of water or into a storm drain—also known as a Municipal Separate Storm Sewer System (MS4)62—until it is released into a water body.

Stormwater discharges are point sources under the CWA

63 and NPDES permits are required for MS4s, construction activities, and industrial activities.64 States have had flexibility in regulating stormwater discharges and issuing NPDES permits. With diverse geography, climate, environment, and city planning across the country, regulatory flexibility has been key for state, city, and local communities that manage stormwater to tailor plans specifically suited to their situations. These factors combined with the complexity of stormwater management make federal regulation extremely difficult and potentially problematic.

EPA has authorized 46 states to issue NPDES permits. EPA is required to establish Effluent Limitation Guidelines (ELGs) — national standards for wastewater discharges to surface waters and municipal sewage treatment plants—and New Source Performance Standards (NSPSs)— pollution control standards issued by EPA for point sources.

65 State permitting authorities incorporate ELGs and NSPSs into their respective NPDES permits.

A. Construction and Development Effluent Limitation Guidelines:

In 2004, EPA proposed a rule containing several options for ELGs and NSPSs to control stormwater discharges from construction sites.

66 Instead of finalizing the rule, however, EPA used their discretion to continue allowing authorized state NPDES permitting authorities to issue permits based on “best professional judgment.” NRDC sued EPA, arguing that EPA’s duty to promulgate ELGs and NSPSs for the construction and development industry was nondiscretionary.67 In National Resources Defense Council vs. US Environmental Protection Agency,c the US District Court for the Central District of California ordered EPA to issue a proposed regulation by December 1, 2008, and final rule by December 1, 2009.68

c Here, the NRDC brought suit against EPA under the CWA seeking to compel EPA Administrator to promulgate ELGs and NSPSs for storm water pollution discharges caused by the construction industry. The district court agreed with the NRDC holding that EPA had failed to comply with the CWA by not performing its non-discretionary duty to promulgate ELGs and NSPSs for the industry, and issued a permanent injunction requiring EPA to issue final ELGs and NSPSs no later than December 1, 2009. This decision was affirmed by the Ninth Circuit in September 2008.

While EPA affirmed in 2004 that “construction site stormwater discharges are already being adequately addressed through the existing program”

69 as a result of the lawsuit EPA finalized their Construction and Development Effluent Limitations Guidelines (C&D ELG) rule in late 2009.70 When the Associated General Contractors of America (AGC) first read the lengthy rule, they noted that “it appears to be extremely onerous and costly to industry.”71 That prediction held true. EPA stated that the annual cost of the rule would be around $953 million once fully 9

implemented.

72 At the time, the AGC argued that the expense of the rules would destroy contracting jobs and increase the unemployment rate above the industry’s then 18.7%.73

One of the most costly factors was the imposition of an impossible-to-meet limit of 280 Nephelometric Turbidity Units (NTU) (a unit measuring the lack of clarity of water) for stormwater discharges from construction sites. Analyses conducted by the National Association of Home Builders (NAHB) and the U.S. Small Business Administration (SBA) revealed that this number was based on flaws in data collection and the misinterpretation of technology on the part of the EPA: the 280 NTU limit cannot be reached by conventional technologies—it would require the installation of expensive advanced treatment systems.

74

Faced with impossible regulations, the NAHB and the Wisconsin Builders Association challenged EPA, and the SBA took legal action on the grounds that the 280 NTU standard was arbitrary and based on faulty analysis. As the SBA stated, because of the “flaws in data collection, manipulation of data, misinterpretation of technology, implementation difficulties, and unreasonable costs”

75 EPA should revise the standard.

In the end, EPA conceded that the estimated costs of compliance with the 280 NTU were more than twice the benefits. In a report on the rule EPA monetized the benefits to be “$369 million per year, once fully implemented.”

76 EPA estimated the total costs to be $953 million and the SBA’s petition for reconsideration estimated that EPA’s ELG rule would actually cost businesses over $9.7 billion per year.77

The rules were scheduled to go into effect on February 1, 2010, but after admitting that the 280 NTU limit was too harsh,

78 EPA filed an unopposed motion to vacate the numeric limitation with a plan to issue a new rule that the construction industry could comply with in November 2012. The Seventh Circuit denied the motion to vacate the numeric turbidity standard but agreed to hold the suit in abeyance until February 2012. Effective January 4, 2011, EPA has stayed the numeric limitation of 280 NTU. EPA will propose a revised limit in a future rulemaking.79 EPA announced updates to the Construction General Permit on April 15, 2011.80

B. New Stormwater Rulemaking:

EPA is currently working on a series of new municipal stormwater regulations which are expected to be proposed in September 2011 and finalized by November 2012.

81 Importantly, EPA has self imposed a deadline as a result of a commitment with the environmental groups NRDC and Waterkeeper, and as a part of the Chesapeake Bay Settlement.d 82

d

EPA is using a November 17, 2009 Letter from Asst. Administrator Pete Silva to Jon Devine, NRDC, and Scott Edwards, Waterkeeper Alliance, which states EPA’s intent to use CWA §402(p) to regulate impervious surfaces and water flows, and part of the Chesapeake Bay Foundation settlement to justify advancing new nationwide stormwater rules by November 2012.

EPA is considering a wide range of options for the 2012 stormwater rule which include:83

 Expanding the universe of federally regulated MS4s to include rapidly developing areas;

10

 Establishing first time standards for post-construction stormwater;

 Establishing first time retrofit requirements on MS4s – which could include

Clouded Waters: A Senate Report Exposing the High – U.S. Senate

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