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Retroactive Stormwater Permitting—An Update on the July 10, 2013 Residual Designation Petition

Preti Flaherty Beliveau Pachios LLP - Portland Office

October 18, 2013

Previously published on October 17, 2013

As reported in our July 22 web posting, a consortium of environmental organizations has filed petitions in three U.S. EPA regions, asking EPA to use its "residual designation authority" (RDA) under the Clean Water Act (CWA) to require industrial, commercial and institutional sites in certain impaired watersheds to have permits for the discharge of stormwater from their impervious surfaces (roadways, parking lots and rooftops). The petitions apply to all of New England, as well as the Mid-Atlantic, California and the southwest. According to the petition filed with regard to EPA's New England region, there are more than 150 impaired watersheds in Maine where permitting is required.

EPA had until October 8, 2013, to respond to the petition. However, the October 1 federal government shutdown placed a hold on EPA's RDA decision, since responding to the petition is not an exempt/essential activity under EPA's shutdown contingency plan.

Unlike the situation where EPA proposes a new regulation, there is no provision for public comment on RDA petitions. Therefore, EPA is not required to review or respond to comments that may be submitted prior to the issuance of its RDA determination. (If past precedent holds, EPA will issue a preliminary RDA determination and will then invite public comment before it finalizes its decision, but this is not a mandatory step under the petition process.)

If the petition for New England is granted or the petitioners prevail in legal proceedings that likely would follow a denial, the Maine DEP, as the delegated CWA permitting authority for the State, could be required to establish a massive permit system with potentially hundreds if not thousands of permittees. Hence, DEP has submitted a letter to EPA commenting on the petition. In its comment letter, DEP takes issue with the proposed list of waterbodies where stormwater runoff would be regulated, noting that most of these waterbodies are in rural locations where runoff is likely (in DEP's view) to result in only de minimis contributions to impairment. DEP observes that for those waterbodies located in urbanized areas, stormwater runoff is already regulated under other Maine stormwater permits (including the Small Municipal Separate Sewer System (MS4) program).

The four municipalities comprising the Long Creek Watershed Management District, created as a result of a prior RDA petition to EPA Region 1 and the Maine Turnpike Authority, whose roadways cross many impaired watersheds (including Long Creek), have also submitted comments based on their experience, noting that the current petition is overbroad and - unlike Long Creek - the waterbodies, discharges and stakeholders it encompasses are too diverse to be successfully integrated into a single permitting program.

It should be noted that pursuant to a 2010 settlement agreement with various environmental organizations, EPA is under an existing obligation to issue a new national stormwater rule by 2012. The deadline for the new rule (which would expand municipal stormwater sewer system (MS4) permit regulations, including establishing specific requirements for stormwater discharges from, at a minimum, new development and redevelopment) has been extended repeatedly. The parties are reported to be at an impasse over setting a new deadline for promulgation of the rule and the federal government shutdown has further stalled both negotiations on a revised schedule and substantive work on a rule proposal. Further, it is not known whether or how the as-yet-to-be released stormwater rule will be taken into account by EPA in its response to the current RDA petition.


The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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