In 2008, EPA made a preliminary determination to use its residual designation authority (RDA) under the Clean Water Act to designate stormwater discharges from two or more acres of impervious surfaces in the Lower Charles River Watershed and released a draft general permit to cover such discharges. However, EPA never finalized that designation.
In 2013, the Conservation Law Foundation and other groups petitioned EPA Regions 1, 3, and 9 to use RDA to address a number of watersheds in those regions, including the entire Charles River watershed in Region 1. In 2014, while Regions 3 and 9 denied the petitions, Region 1 punted, stating that it was neither granting nor denying the petition. If, as I speculated at the time, Region 1 was trying to avoid judicial review, it may have failed. On Tuesday, CLF and the Charles River Watershed Association sent EPA a notice of their intent to sue EPA for failing to require permits from stormwater dischargers in the Charles River watershed, as well as for failing to act on its RDA petition regarding the Charles River.
In refusing to act on the 2013 petition, EPA stated that, with respect to the Charles:
the Region plans to revisit its proposal and consider whether it would be appropriate to expand the designation to include sources in additional towns or throughout the entire watershed. EPA will conduct this effort in the context of the petition previously filed by CLF specifically related to the Charles River watershed.
I do not see this as an example of what Congressional Republicans refer to as “sue and settle.” Nonetheless, it is true that when last EPA Region 1 tried to regulate stormwater discharges to the Charles, it received a storm of criticism, including from municipal leaders and other public officials. EPA’s cost estimates were subject to significant criticism for underestimating the cost of compliance. It would not surprise me if some part of EPA’s collective mind will be pleased at being able to move forward with the regulation, while trying to let the blame fall on CLF and CWRA.