May 21, 2010

Chesapeake Bay Initiatives Driving Tighter Controls on Stormwater Runoff From Developed Sites

Holland & Knight Alert
Amy L. Edwards

Both the Environmental Protection Agency (EPA) and the District of Columbia have recently announced a series of measures that will ultimately result in stringent controls on stormwater runoff from pre- and post-development sites in the District. EPA intends to use these measures as a model for similar requirements in other parts of the country. At a recent Anacostia River summit, a representative of the DC Water and Sewer Authority (WASA) described the proposed Clean Water Act (CWA) Permit as “very stringent,” and another speaker stated that the “private sector is now in the crosshairs.” The development community has grave concerns whether these stringent targets are achievable and whether the governing jurisdictions will exercise flexibility in implementing the new rules.

These measures are being driven by President Obama’s Executive Order 13508, issued May 12, 2009, in which the President described the Chesapeake Bay as a “national treasure” and launched a series of studies and reports in order to quickly and dramatically improve the condition of the Bay. Changes are underway at federal, state and local levels that are likely to impact the built environment in the Washington, D.C. area and other parts of the country. Over the coming months, it is likely that:

  • EPA will release a very stringent municipal separate storm system (MS4) permit for the District of Columbia
  • EPA and the District will issue stringent Total Maximum Daily Loads (TMDLs) for discharges of nitrogen, phosphorus, sediments, nutrients and trash into local waterways
  • the District will issue stringent proposed stormwater regulations
  • the District Department of the Environment (DDOE) and DC Water and Sewer Authority (WASA) will implement proposed increases in their impervious surface fees
  • EPA will move forward with a national rulemaking to regulate discharges of stormwater from “post construction” sites
    Similar measures are expected to be adopted in the near future in the other jurisdictions that comprise the Chesapeake Bay watershed as well. All of these initiatives will place pressure on the development community and existing property owners to retain most of their stormwater on-site or pay hefty discharge fees or enforcement fines. Property owners are encouraged to monitor these developments closely and to provide comments on the likely impact of these proposed rules on their projects in D.C. and surrounding jurisdictions.

Proposed MS4 Permit for the District of Columbia

On April 21, 2010, EPA notified the D.C. government that it was proposing a new National Pollutant Discharge Elimination System (NPDES) permit for discharges from the District’s municipal separate storm sewer system. The 2010 proposed Permit, which is much more stringent than the existing 2004 Permit, will generally require 90-95 percent of stormwater runoff to be retained on-site. While the requirements in the proposed MS4 Permit are not directly applicable to property owners, they send a clear signal regarding the types of requirements that the District is likely to impose upon property owners once the District has updated its stormwater statutes and regulations. It is unclear at the present time whether these aggressive goals are achievable at many development sites and whether the District will exercise any flexibility in implementing the new requirements (such as allowing off-site mitigation).

The proposed Permit would require the District to amend its statutes and regulations within the next 12-18 months in a number of areas. To achieve this mandatory goal, the proposed Permit directs the District to adopt whatever legal authority may be needed to implement these new requirements as soon as possible, and to update its stormwater regulations within one year of the effective date of the new Permit.

The proposed Permit seeks to encourage the use of low-impact design (LID) and to make post-development flow comparable to the property’s pre-development condition, by modeling the post-development conditions against a pre-development condition of “meadow.” The proposed Permit would also prohibit non-stormwater discharges (e.g., contaminated sump water or groundwater) into the MS4 system unless regulated under an NPDES permit. If the proposed MS4 Permit is adopted by late summer, and the District adopts the new statutes and regulations required by the proposed Permit, local businesses could be facing a number of very stringent stormwater requirements as early as the fall of 2011.

New Development and Redevelopment

The draft Permit establishes on-site retention standards for non-federal and federal properties to control stormwater runoff during construction. For facilities greater than 5,000 square feet that are undergoing new development or redevelopment:

  • for non-federal facilities there is a choice between: (1) on-site retention of a 1.2’’ volume of stormwater from a 24-hour storm, which represents a 90 percent capture rate; or (2) the design, construction and maintenance of stormwater controls to retain the pre-development runoff volume of stormwater from a 24-hour storm
  • for federal facilities there are also two options: (1) on-site retention of a 1.7’’ volume of stormwater from a 24-hour storm, which represents a 95 percent capture rate; or (2) the design, construction and maintenance of stormwater controls to retain the pre-development runoff volume of stormwater from a 24-hour storm; under both scenarios, the modeled pre-development condition must be a meadow

Green Technology Practices

One of the most notable differences between the 2010 proposed Permit and earlier permits is the imposition of minimum performance measures for green technology stormwater management practices, sometimes referred to as “green infrastructure.” The minimum performance measures include enhanced tree canopies (4,150 trees planted annually), green roofs (120,000 square feet annually), the use of pervious surfaces to slow the rate of stormwater runoff flows from paved areas (13.5 million square feet over Permit term) and enhanced street sweeping frequency on highway projects.

D.C. Retrofit Program

The proposed Permit specifically requires the District to establish a Retrofit Program for the District’s three major watersheds – the Anacostia and Potomac Rivers and Rock Creek. The proposed Permit also requires the District to manage runoff from 18 million square feet of impervious surfaces under the Retrofit Program over the Permit term. A minimum of 3.6 million square feet of this objective must be in transportation rights-of-way. Additionally, the proposed Permit targets any new or development projects for identifying retrofit opportunities for stormwater control.

Other Proposed Changes

In addition to these topics, several other specific changes can be found in the draft Permit. For example, the 2010 proposed Permit would:

  • use the more stringent of either the District’s water quality standards or the TMDL waste load allocations (WLAs) for enforcing the stormwater management program
  • require post-development sites to be restored to pre-development conditions unless the discharge has been fully compensated for by an offset credit program
  • add biological monitoring to the District-wide program
  • add development of TMDL implementation plans for the Potomac River and for trash in the Anacostia watershed and expand criteria for EPA approval of updated and new plans

EPA Will Accept Public Comment on the Draft MS4 Permit Until June 4, 2010

Following the close of the public comment period, EPA will prepare a response and make any necessary modifications to the Permit to address any comments submitted by the public. EPA expects to finalize the MS4 Permit within three months of the close of the public comment period. Finalization of the Permit will officially trigger the start of the timeframes for the District to adopt additional statutes and regulations to implement the requirements of the Permit. Accordingly, as early as fall 2011, D.C. businesses may be subject to more stringent stormwater management rules.

Increased Impervious Surface Fees

DC WASA has announced proposed increases to its impervious surface fees that would go into effect October 1, 2010. At the same time, the federal government has announced that it will not pay these fees at federal facilities on the basis that it views these fees as a tax. While the District is required to provide credits for the green attributes of a project to offset some of these fees, neither DC WASA nor DDOE has yet published proposed rules to provide such credits. Citizens and business owners are encouraged to learn more about the proposed rate increases and speak with representatives from DC WASA. Throughout the spring and summer of 2010, DC WASA will host town hall meetings at various locations throughout the District. Enforceable Discharge Limits as a Result of the Recent Settlement of an Environmental Lawsuit Involving the Chesapeake Bay

A recent settlement agreement reached between the Chesapeake Bay Foundation, former Maryland, Virginia and Washington, D.C. elected officials, and organizations representing watermen and sports fishermen will result in increased regulatory controls related to stormwater in the District of Columbia. The agreement involves establishing stringent Chesapeake Bay TMDLs, putting in place an effective implementation framework, expanding EPA’s review of Chesapeake Bay watershed permits, and initiating rulemaking for new regulations for concentrated animal feeding operations (CAFOs) and urban and suburban stormwater. Under the settlement, there will now be legally enforceable standards for discharges of stormwater that must be met.

By December 31, 2010, EPA will establish the Chesapeake Bay TMDL, a tool under the federal Clean Water Act that will set stringent pollution reduction requirements designed to restore the Chesapeake Bay and its tributaries. The Chesapeake TMDL will be the largest and most complex TMDL ever developed in the nation, involving sources throughout a 64,000-square-mile watershed that includes six states and the District of Columbia.

Release of Federal Strategy for Protecting and Restoring the Chesapeake Bay Watershed

On May 12, 2010, a group of federal agencies made announcements regarding a strategy to protect and restore the Chesapeake Bay. The Federal Leadership Committee for the Chesapeake Bay, a coalition of federal agencies including the U.S. Department of the Interior, U.S. Department of Transportation, U.S. Department of Agriculture, and chaired by EPA Administrator Lisa Jackson, announced a comprehensive strategy that expands the federal commitment to the Chesapeake Bay region. Many of the federal actions will directly support the restoration efforts of local governments, nonprofit groups, and provide economic benefits to the six states and the District of Columbia that comprise the Chesapeake region. View the “Strategy for Protecting and Restoring the Chesapeake Bay Watershed.” Shortly afterwards, EPA released Land Management Guidance to help federal facilities reduce their pollution into the Chesapeake Bay. The guidance includes cost-effective tools and best practices to reduce water pollution from nitrogen, phosphorus and sediment.

Potential Federal Regulation of Stormwater From “Post Construction” Sites

On October 30, 2009, EPA published a notice in the Federal Register seeking data from “stakeholders” (e.g., owners or operators of MS4s, states and territories, and owners, operators, developers, and contractors of development sites) to inform a planned rulemaking on stormwater runoff from “post construction” sites. The Agency sought input on stormwater practices, including:

  • design, performance, operation and maintenance, capital and lifetime cost for stormwater retention practices used to control discharges from new development, redevelopment and retrofit
  • cost comparisons of different stormwater management approaches for specific sites
  • monitoring information that may have been collected to show the impacts of stormwater control measures on water quality and flow rates in the receiving water body

In January of 2010, EPA held public “listening sessions” on the proposal in five cities: Chicago, IL; San Francisco, CA; Denver, CO; Dallas, TX; and Washington, D.C. EPA also held a “virtual” listening session as a live webcast during the month of February. The agency held an additional listening session on March 11, 2010, in Boston, MA.

As part of its outreach, EPA sought feedback on whether it should:

  • expand the area subject to federal stormwater regulations beyond an urbanized area
  • establish specific post-construction requirements to control stormwater discharges from new development and redevelopment
  • develop a single set of consistent stormwater requirements for all MS4s to replace “Phase I” and “Phase II” rules
  • require MS4s to address stormwater discharges in areas of existing development through retrofitting the sewer system or drainage
    area with improved stormwater control measures
  • explore specific stormwater provisions to protect sensitive areas

The listening sessions have identified region-specific concerns with the potential regulation; highlighted new technologies available to combat stormwater pollution; and given local and state officials a platform to address their concerns regarding the cost of complying with expanded federal regulations. For instance, at the listening session in Denver, water quality officials representing Denver-area municipalities told EPA that imposing additional requirements such as those EPA is considering would present implementation problems because Western water law and topography are inconsistent with many of the approaches and stormwater management devices promoted by EPA. Specifically, a municipal official expressed concerns about EPA’s “one-size-fits-all” approach to stormwater regulation and explained that Western water law, which requires that the rights of water owners downstream be preserved, and the fact that most Western states lack soil suitable for infiltration, make stormwater retention infeasible in states like Colorado. At the listening session in Washington, D.C., a representative from a small municipality in Virginia expressed concern that expanding the stormwater regulations would be incredibly restrictive of redevelopment and would likely prevent developers from coming into the city to plan new projects.

EPA announced on May 10 that it was sending survey questionnaires to property owners and developers, municipal sewer system authorities, transportation organizations, state regulators, and EPA regional offices to gather information about current stormwater management practices. View the Federal Register notice regarding the questionnaire. EPA hopes to publish a final rule regarding stormwater best practices and requirements for “post construction” sites by late 2012.

Enhanced Enforcement Actions in the Chesapeake Bay Watershed

The federal government has also increased its enforcement actions in the stormwater area. For example, the U.S. Department of Justice announced on May 11, 2010, that it had lodged a Consent Decree with Hovnanian Enterprises, Inc. under the Clean Water Act for alleged stormwater violations at construction sites in 19 states. Hovnanian agreed to pay a civil fine of almost $1 million and to implement reporting and training requirements in order to improve its compliance at future construction sites.


The days of command and control are back, and property owners are the new polluter. Property owners need to be aware of these proposed changes to stormwater requirements that will impact construction and post-construction sites and to participate in the rulemaking process. The multitude of measures being proposed to improve the quality of the Chesapeake Bay will be very stringent, will impose substantial costs on property owners and may be infeasible to implement in many instances, yet these changes will serve as a model for similar requirements in other parts of the country. It will be important to convince EPA and local regulatory authorities to design regulatory flexibility and incentives (rather than “hard hammers” and sticks) into the programs that are being developed.

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