Residual Designated Authority – Friend or Foe to the Public Sector?

Seth Brown, stormwater program and policy director at the Water Environment Federation
Juli Beth Hinds, principal with Birchline Planning LLC

Residual Designated Authority (RDA) may soon become well-known to the stormwater community. It is a little-known provision in the Clean Water Act [402 (p)(2)(E)] that provides a U.S. Environmental Protection Agency (EPA) or state regulatory administrator with the authority to require permits for any stormwater discharge that “contribute[s] to a violation of water quality standards or is a significant contributor of pollutants to the water of the United States.” In essence, if the EPA administrator or state authority determines that a stormwater discharge — even from an existing unregulated source — is contributing to the impairment of a waterbody, the discharger may be required to obtain a permit and comply with current stormwater regulations. Hypothetically, any and all discharges contributing to the stormwater pollution load in an impaired watershed could be subject to permit requirements. The requirements could fall under either the existing National Pollutant Discharge Elimination System (NPDES) program in communities already under this umbrella or in a new NPDES program for programs not successfully reducing wasteload allocations (WLAs) locally.

Few are currently aware of RDA, and even fewer may understand the implications. RDA has recently been brought into focus by a series of petitions filed in EPA Regions 1, 3, and 9 in early July by a group of environmentally-focused nongovernment organizations spearheaded by American Rivers, the Natural Resources Defense Council, and the Conservation Law Foundation. These petitions specifically target stormwater discharges from existing commercial, industrial, and institutional land uses. The petitions request that the EPA administrators in these regions exercise their designated authority to require stormwater management and pollution reduction from all but de minimis impacts from these existing land uses. According to the petitions, owners of these properties should “do their fair share to reduce polluted runoff, protect clean water, and relieve the burden on taxpayers.”

One clear intent of the petitions is to argue that the municipal sector has been unfairly bearing the brunt of responsibility and cost of addressing stormwater discharges originating from unregulated sites. But questions remain regarding the actual effects of the petitions. For instance, if currently unregulated sites are required to address stormwater discharges, who will administer the permitting, inspection and maintenance of these facilities? A logical answer to this question is that either local municipal separate storm sewer systems (MS4s) or state regulatory agencies will provide these services and bear the costs.

A second question is how de minimis is defined. Merriam-Webster Dictionary defines de minimis as “lacking significance or importance: so minor as to merit disregard.” So what does that term mean in terms of RDA and stormwater?

Next, the Clean Water Act clearly defines commercial and industrial land uses and activities, but this is not the case for institutional entities. Zoning codes define institutional land uses differently from place to place, and in many instances, could include publicly-owned and operated properties associated with schools, parks, and community-focused operations like community centers.

Finally, what are the economic impacts of exercising RDA? For instance, if a commercial property is asked to address existing stormwater discharges, either on their property or elsewhere by paying an in-lieu fee, these new costs become part of the calculus of site location and economic development. Some argue these impacts may be significant enough to create responsive action by effected property owners. In contrast, work by ECONorthwest and others points out that, “developers describe the cost of implementing stormwater controls as minor compared to other economic factors,” which is also backed up through anecdotal evidence. While these questions remain, EPA provided only interim responses to each petition within the 90-day regulatory window for response, acknowledging that the regions required additional time for analysis before any final action.

The petitioners have targeted EPA regions with significantly urbanized areas. In only one, EPA Region 1, is there a precedent for the exercise of RDA. This region has been the most active area for RDA, with three of four existing cases of RDA determinations. Guam is the only other example.

The Region 1 examples may inform how the petitions will play out. In Vermont, after a long legal battle in 2008, the State’s Environmental Court required the Vermont Department of Environment and Conservation to exercise their RDA in association with a series of stormwater-related total maximum daily loads (TMDLs). The resulting RDA general permit, which extended stormwater permitting to more than 450 existing discharges, required different levels of action for three categories of existing stormwater discharges. Categories included sites with more than one acre [0.4 ha] of impervious cover with an existing state stormwater permit; sites with more than one acre [0.4 ha] of impervious cover without a state stormwater permit; and sites with less than one acre [0.4 ha] of impervious cover, which were required to follow “good housekeeping” non-structural practices.

In Maine, Portland’s Long Creek Watershed was targeted for RDA determination through a petition sent to EPA Region 1 in 2008. While a TMDL was not established for this 9 km² (3.5 mi²) watershed, studies by both Maine and EPA showed typical urban impairments, such as low dissolved oxygen, high sediment loading rates, and impacted aquatic biota. The studies provided the basis for designation, and RDA general permit implementation was initiated in 2010. It included an option for 140 covered landowners to pay an in-lieu fee of $7500 per hectare ($3000 per acre) of impervious surfaces to address effects offsite rather than on their property. More than 90% of landowners have chosen to pay the in-lieu fee, and projects are now in the ground. Results from the process were presented at Maine’s first statewide stormwater conference in November 2013.

In Massachusetts, the RDA experience is tied to the Lower Charles River watershed TMDL, which requires a 65% reduction in phosphorous loading associated with a variety of urban land uses. The resulting RDA permit led to targeting 235 properties with more than 0.8 ha (2 ac) of impervious cover each in the Upper Charles River watershed.

Petitioners have used the Long Creek Watershed example to show how fees can address the inequity between municipal and unregulated discharges originating on private property. However, in applying the program regionwide there are significant questions regarding scalability and transferability. On Oct. 2, the State of Maine wrote a letter in protest to the current petition stating “any development likely to be a [non-de minimis] contributor to urbanized stormwater runoff is already captured by Maine’s existing regulations,” and that the RDA clause was intended for “special” and “discrete” sources rather than “predetermined sources of stormwater.” Questions have been raised as to whether a program encompassing 140 property owners in a 9-km² (3.5-mi²) watershed should be the blueprint for an RDA process in San Diego, Baltimore, or Richmond. Questions also remain as to how RDA will operate with the pending national stormwater rulemaking. Lastly, it is unclear whether widespread RDA implementation creates a fragmented regulatory landscape leading to more confusion than harmony.

Consensus shows that runoff from existing impervious cover continues to affect U.S. waters, and exempting some discharges shifts the burden and cost of compliance to regulated discharges and municipalities. Some highlight that more than one-third of Phase I MS4 communities address the effects of existing impervious cover through a retrofit plan. However, others argue that RDA could help rectify inequity resulting from non-municipal and non-regulated sources beyond a municipality’s jurisdiction and achieve greater progress in addressing stormwater effects. The heart of the RDA matter is attempting to address existing unregulated discharges and creating a framework for a more equitable distribution of costs among dischargers, yet there may be unintended consequences. This prompts the question of whether RDA is the best means of addressing existing effects or if other approaches might present better alternatives.