Category Archives: Stormwater

Enforcement of Municipal Stormwater Ordinances Is Tricky Business: Failure to Enforce an Ordinance Required Under a Permit Is Not a Violation of the Permit

Stormwater pollution has become an increasingly important problem.  Part of the difficulty in solving it is that it’s not obvious who should be responsible.  Should cash-strapped municipalities be on the hook or should it be developers and others who own and maintain large properties with acres of impermeable surfaces?  Often, the answer given by EPA […]

Cape Cod TMDL Litigation; CLF Is Still In There Swinging

In September, I noted that Judge Mark Wolf had dismissed CLF’s law suit challenging EPA’s approval of the TMDLs for the Cape Cod embayments, ruling that CLF did not have standing.  CLF, as is its wont, is not going gentle into that good night.  It is still raging, raging, at EPA’s decision.  More to the […]

EPA Proposes Revisions to the Construction and Development Effluent Guidelines: Time Again To Ask Whether EPA Will Get Any Credit For Being Flexible

Today, EPA formally proposed revisions to its effluent guidelines for stormwater discharges from construction and development point sources.  As we have previously noted, in response to concerns about the basis for EPA’s numeric turbidity standards, EPA had stayed the numeric standards.  It is now formally proposing to withdraw them. EPA also responded to concerns that […]

EPA Formally Withdraws Numeric Turbidity Standards from Its Stormwater Rule for Construction and Development Sites

Daily Environment Report announced yesterday that EPA notified BNA that, late last year, EPA reached a settlement with the Utility Water Act Group and the National Association of Home Builders resolving litigation over EPA’s rule imposing effluent limitations on the “Construction and Development Point Source Category” and over its Construction General Permit. The most contentious […]

Dog Bites Man: Supreme Court Edition

In a curious, but unsurprising, decision yesterday, in Los Angeles County Flood Control District v. NRDC, the Supreme Court held that the flow of water containing pollutants from part of a river that has been culverted into a part of the river which still maintains natural banks is not a “discharge of a pollutant” within […]

And Some Potential Developments on the Water Side As Well

Yesterday, I did an update on Clean Air Act developments. Today, it’s the Clean Water Act’s turn. According to the Daily Environment Report, EPA will meet its deadline of June 13, 2013 to promulgate a post-construction stormwater rule. I found it interesting that the story states that EPA has nearly completed its cost-benefit analysis for the rule – even though it […]

Superfund Meets the Reality of Climate Change

What happens when Superfund runs headlong into Mother Nature?  Hurricane Sandy provides a vivid answer. As the New York Times reports today, Hurricane Sandy had a significant impact on the Gowanus Canal Superfund Site in Brooklyn, NY.  The Canal was completed in 1869 and for over a century was the recipient of industrial discharges from mills, tanneries, and chemical plants resulting […]

Mayors Request Moratorium on Stormwater Enforcement — Will EPA Listen?

E&E News reported yesterday that the U.S. Conference of Mayors has requested a “moratorium” on Clean Water Act enforcement of stormwater limitations on municipalities. The report makes clear that the Mayors avoided an attack on either the CWA or the current EPA administration. Moreover, they acknowledged that there is still “much to be done to protect our […]

EPA Further Delays Issuance of Post-Construction Stormwater Regulation Proposal; Contractors and Developers Are Distraught (Not!)

Those following stormwater issues know that EPA is overdue to promulgate a proposed rule for stormwater controls at post-construction sites. The rule has been extremely controversial, with groups such as the Associated General Contractors arguing that EPA has no authority to promulgate post-construction rules. EPA was originally scheduled to issue the proposed rule by September 30. When EPA […]

Coming Soon to Massachusetts: Adaptation to Climate Change

The abandonment of any discussion of climate change in Washington has not been followed in Massachusetts. Yesterday, Rick Sullivan, the Secretary of Energy and Environmental Affairs, released the Massachusetts Climate Change Adaptation Report, providing the fruits of a lengthy process in Massachusetts to look at the impacts of climate change on five areas: Natural Resources and Habitat; […]

Score One For Affordable Housing: Chapter 40B Trumps Vague Local Environmental Concerns

In an interesting decision issued today, in Zoning Board of Appeals of Holliston v. Housing Appeals Committee, the Massachusetts Appeals Court held that a local zoning board of appeals cannot use vague local environmental concerns as a basis for denying a comprehensive permit under the Massachusetts affordable housing statute, Chapter 40B. As those practicing in this area […]

EPA Delays Issuance of Stormwater Rule for Construction Sites

Late last week, Greenwire reported that EPA is delaying its proposed construction general permit, or CGP, for stormwater. The delay is certainly a victory for the real estate industry, which has been fighting hard to delay the rule and, in particular, its numeric turbidity limit. The industry had complained about the data on which the standard was […]

EPA Is Still In Business: Proposes Draft Construction General Permit for Stormwater

For those of you who thought that the sky was about to fall in EPA as part of the budget battle, I’m able to report that EPA survived sufficiently intact to continue to issue new rules. Today, EPA proposed a draft revised construction general permit, or CGP, for stormwater discharges from construction sites disturbing at least […]

EPA Really Cares About Stormwater Enforcement

When EPA creates a web page solely addressing one stormwater settlement, you can safely assume that EPA thinks it is important and is trying to send a message. Thus, EPA’s announcement earlier this week of a settlement with Beazer Homes to resolve allegations that Beazer Homes violated federal stormwater requirements at construction sites in 21 – […]

More on TMDLs, or Too Much Darn Litigation

Sometimes, the headline writes the story. EPA’s TMDL program under the Clean Water Act has been the subject of so much litigation since its inception that EPA has a web page devoted to the status of litigation on the establishment of TMDLs. Bringing things close to home, the Conservation Law Foundation and the Coalition for Buzzards […]

A Combined Superfund and Stormwater Rant

Sometimes, the practice of environmental law just takes my breath away. A decision issued earlier last month in United States v. Washington DOT was about as stunning as it gets. Ruling on cross-motions for summary judgment, Judge Robert Bryan held that the Washington State Department of Transportation had “arranged” for the disposal of hazardous substances within the […]

Water, Water, Everywhere: More Than a Drop to Treat

Last week, EPA released its Clean Watersheds Needs Survey 2008 Report to Congress. I have three immediate reactions to the Report. The first is that there are a lot of needs out there. The Report’s bottom line is that there is currently an expected shortfall of $298 billion over the next 20 years for clean water infrastructure. As Congress […]

EPA’s Move to Regulate Stormwater Discharges from Development Gathers Steam; EPA Issues Mandatory Questionnaire For Public Comment

EPA is proceeding with its plan to establish a new program to regulate stormwater discharges from new development and redevelopment, with a target date for a final rule by November 2012. The next step: the reissuance of draft mandatory questionnaires that, once finalized, will be sent to various stakeholders, including approximately 738,000 owners and developers […]

EPA Keeps Up the Stormwater Drumbeat: Releases Draft Permit for Charles River Communities

EPA Region 1 continues to roll out new programs on the stormwater front, and this week’s development is particularly important for private property owners in the Charles River watershed. The agency released proposed amendments to the Residual Designation for the Charles River (“RDA”) and a Draft General Permit for Residually Designated Discharges. While the proposed permit only […]

Developments on the Stormwater Front: EPA Region I Releases Draft Small MS4 Permit

Earlier this week, EPA announced release of a draft North Coastal Small Municipal Separate Storm Sewer System General Permit. Once finalized, the General Permit will affect 84 communities in eastern Massachusetts. EPA has noted that similar MS4 General Permits will also be rolled out for the rest of the Commonwealth. The draft General Permit is […]

EPA Issues Construction Stormwater Rule — First National Standards With Numeric Limits

Yesterday, EPA released its effluent guidelines for construction sites. The guidelines establish the first national standard containing numeric limitations on stormwater discharges. The final standard imposed is 280 nephelometric turbidity units. It will apply to all construction sites greater than 20 acres in size as of 18 months following the effective date of the regulations (which will […]

New Clouds on the Storm(water) Front: EPA Takes Enforcement Action Against 9 Municipalities

As we have reported, EPA and MADEP have both been taking steps over the past year to broaden the scope of their stormwater programs beyond existing regulation under the rules concerning stormwater discharges associated with industrial or construction activity. EPA has proposed using residual designation authority in Maine and Massachusetts and the MADEP proposed sweeping rules […]

Stormwater Discharges From Construction Activity: What Next From EPA?

Construction and development companies praying for an economic recovery next year have something else to worry about: pending new EPA regulations regarding stormwater discharges from construction activities – and claims from environmental groups that EPA’s proposal isn’t stringent enough. EPA issued a proposal on November 28, 2008. That proposal is complex, but the aspect of it that […]

Sustainable Stormwater Management: The Next Wave in Water Pollution Regulations?

As we previously noted, last fall Massachusetts proposed sweeping new regulations designed to reduce phosphorus discharges in stormwater. In response to a very large number of comments, MassDEP is taking a second look at the regulations, though the bookies in Las Vegas are laying odds against there being any significant changes made when the regulations reappear. […]

EPA and Maine DEP Announce New Stormwater Controls

Demonstrating that the recent announcement of new stormwater controls for the Charles River in Massachusetts were not an aberration, EPA, joining with the Maine DEP, announced last Friday that it will be imposing new stormwater regulations for discharges into Long Creek, which ultimately flows into Casco Bay. Responding to petitions from the Conservation Law Foundation, […]

EPA Issues New Industrial Stormwater Permit

On September 22, EPA issued a new Stormwater Multi-Sector General Permit (MSGP) to cover 4,100 facilities with discharges associated with an industrial activity. The permit replaces the MSGP that was issued in 2000 and expired in October 2005. The expired permit continued to be valid for facilities that were covered by the permit at the […]