On October 17, 2016 the Environmental Protection Agency (EPA) Region 9 rejected a petition filed by environmental advocates under the federal Clean Water Act (CWA). The petition aimed to strengthen the regulation of stormwater discharges into the Alamitos Bay/Los Cerritos Channel watershed from “privately-owned commercial, industrial and institutional sites.” To achieve this goal, the petition demanded that EPA Region 9 require every privately-owned commercial, industrial, or institutional site in the Alamitos Bay/Los Cerritos Channel watershed to apply for a CWA National Pollutant Discharge Elimination System (NPDES) permit.

The regulation of stormwater discharges from commercial properties with large areas of impervious surface, like office parks, shopping malls, or apartment complexes remains a fiercely contested environmental issue. The CWA regulates stormwater under the Section 402 NPDES permitting program (33 U.S.C. §1342). The NPDES program requires a permit for any point source pollution to a water of the United States. The CWA defines point source broadly to include things such as pipes, ditches, tunnels, or anything that can be categorized as a discernible conveyance that pollutants can be discharged from.

Currently stormwater discharges from commercial properties are not regulated directly by the EPA under the NPDES program. This is because most commercial properties discharge to a municipal sewer system, and instead fall under state stormwater regulations, municipal stormwater management plans, or both. Municipal sewer and wastewater treatment systems require their own NPDES permits and implement stormwater management programs to control the stormwater accepted into their combined sewer system or municipal separate storm sewers (“MS4”).

The EPA has Residual Designation Authority (RDA) under Section 402(p)(2)(E) of the CWA to regulate previously unregulated stormwater discharges if it determines that those discharges are causing violations of water quality standards or significantly contributing pollutants. The EPA’s regulations specifically allow for third parties, such as environmental advocacy groups, to file petitions seeking exercise of this authority. (40 C.F.R. § 122.26(f)(2).)

This RDA petition was one of three filed with the EPA last year targeting specific watersheds. The other two petitions were filed in EPA Region 3, which has not yet responded to either petition. These petitions have been filed around the country in recent years, demanding the EPA regulate stormwater discharges from commercial properties, especially those with large areas of impervious surface or parking lots, and if successful would impose costly regulatory requirements on commercial property owners and developers.

EPA Region 9 rejected the petition to require commercial, industrial, and institutional sites in the Alamitos Bay/Los Cerritos Channel watershed to apply for NPDES permits on the grounds that other regulatory programs were already in place to regulate the issue. The EPA reasoned that these programs address water quality impairments, including permitting requirements on MS4s, and should be allowed adequate time to take effect before considering additional regulations.

Although the current regulations apply directly to the operator of the MS4, when municipalities develop stormwater management programs to meet permitting requirements, they generally implement regulations restricting stormwater that flows into their system. Municipal MS4 operators typically require stormwater capture or treatment before discharge, collect stormwater fees for usage, or require the use of green infrastructure or other measures to reduce stormwater flows into their systems.

The EPA’s approach in this case appears consistent with the treatment of previously proposed national post-construction regulations. Following a citizen suit involving the water quality impacts in the Chesapeake Bay, the EPA agreed to propose regulations to manage stormwater discharge from commercial sites. However, after four years of missed deadlines, no action had been taken. Accordingly, in 2014, the EPA announced it would instead rely on existing regulatory programs and provide additional incentives and assistance to address stormwater impacts.

As environmental groups increasingly turn to RDA petitions to force additional regulations on stormwater discharges, their efforts have recently proven less than successful. In 2014, environmental advocacy groups filed RDA petitions in EPA Regions 1, 3, and 9 seeking broader regulations for stormwater in each of those regions. Each region declined to take any action in response to any of the petitions filed that year. However, environmental groups continue to argue that the EPA has a non-discretionary duty to take regulatory action and promise to continue their fight to convince courts to adopt their view that the EPA lacks discretion to determine what if any actions are necessary to remedy the impacts of stormwater from commercial properties.

Following this rejection, the use of RDA petitions as an attempt to force more stringent regulations on stormwater permitting programs for commercial and institutional properties remains a developing issue. Owners and operators of commercial and institutional properties should consult with local counsel to determine whether their facility may discharge into a waterway where NPDES permits are required due to the EPA or state agency using its RDA. This authority can be used to protect waterways with chronic pollution problems that may be designated “impaired” by the EPA or state environmental agency. If ever successful, heightened regulations could have significant and costly consequences for owner and developers of commercial, industrial, and institutional properties.